Employment Law Bulletin - Issue 128 - 12 June 2012

Tuesday 12 June 2012

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Employment News

Enterprise and Regulatory Reform Bill has second reading
The government's Enterprise and Regulatory Reform Bill has now had its second reading in Parliament. The House of Commons Library has published a detailed guide to its contents here.

Equality law: consultations still underway
Home Office consultations on the likely abolition of the rules on third-party harassment, abolishing the statutory questionnaire processes and limiting the tribunals' power to make recommendations in discrimination cases will remain open until 7 August.

Forthcoming Supreme Court cases
The Supreme Court is due to hear three employment cases in July 2012: O'Brien v Ministry of Justice and British Airways v Williams, both following references to the CJEU, and Birmingham City Council v Abdulla, on whether equal pay claims can be brought in the civil courts after the expiry of the time limit that would apply to an employment tribunal claim.

Employment Case Law

High Court

Failure to re-engage

Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust [2012] EWHC 1445Where an employer is ordered by the Tribunal to re-engage or reinstate a dismissed worker but fails to do so, a Tribunal has the power to order additional compensation of between 26 and 52 weeks' pay, but the Tribunal has no power to enforce the order of reinstatement (section 117 Employment Rights Act 1996). Where the employer is a public body and has no intention of being bound by the Tribunal's order, can a Claimant enforce the original order of re-engagement, by way of a claim for Judicial Review? In a case concerning a nurse and trade unionist whose reinstatement the employer refused, primarily on the basis that it feared he would use re-engagement to renew his trade union activities, the High Court has granted permission to the Claimant to bring his claim. For the full judgment, click here.

Employment Appeal Tribunal

Settlement offers

Konczak v BAE Systems (Operations) Ltd [2012] EAT 0498/11
Does a failure to beat a settlement offer entitle a Tribunal to find that the Claimant has not mitigated her loss, and "stop" the compensatory award at the date that the settlement offer was made? Not necessarily, the EAT has held, in a case brought by a secretary who succeeded in claims of sex and disability discrimination, after having refused an offer from her employer made just three days before the Tribunal hearing (after which the Tribunal took a further three years to convene the remedies hearing). The EAT did not accept the findings of the original ET that by rejecting the original offer the Claimant had contributed to the continuation of her ill-health for a further three years. "Absent a wholly unreasonable refusal to countenance settlement", the EAT held, "the Claimant was perfectly entitled to pursue her remedy for what the Employment Tribunal found was her unfair and discriminatory treatment at the hands of the Respondent. It is well documented in ordinary personal injury litigation that the fact of the litigation may contribute to the prolongation and possible exacerbation of the Claimant's medical condition. That is what appears to have happened, on the whole of the medical evidence, in this case. Provided the condition is genuine the Respondent must take its victim as it finds her." For the full judgment, click here.

Apparent bias

London Borough Of Brent v Gbaja [2012] UKEAT 0581/11
Anecdote suggests that the majority of unsuccessful bias appeals to the EAT are brought by parties who were unrepresented at first instance. A reason for the reluctance of lawyers to bring bias appeals may be the warning contained in Paragraph 11.6.3 of the EAT Practice Direction to the effect that unsuccessful pursuit of an allegation of bias may put the party raising it at risk of an order for costs. In a bias appeal brought, unusually, by a represented Respondent, the EAT had to determine whether apparent bias was made out where the evidence of differential treatment during the hearing was thin (and the only ground of appeal was apparent bias), but a Tribunal had determined a case against the Respondent which the Respondent might have expected to win (a misconduct dismissal where the Claimant admitted making a very large amount of unauthorised personal phone calls causing her employer loss but the dismissal procedure was unfair and no Polkey reduction or reduction for contributory fault was made), and the Employment Judge had previously been a witness in a housing matter against the Respondent and had had a charging order made against a property owned by him. The EAT emphasised that the debt was owed by the Judge's former partner and if anyone was responsible for the action itself it was not Brent who were acting as one would expect a council to act, but that former partner. The Judge was right to have brought the matter to the parties' attention, but apparent bias was not established. For the full judgment, click here.

Apparent bias

Attorney General v Bentley [2012] UKEAT 0556/11

Section 33 of the Employment Tribunals Act 1996 gives the Employment Appeal Tribunal the power to make a restriction of proceedings order, on an application by the Attorney General or the Lord Advocate, where a person has habitually and persistently and without any reasonable ground instituted vexatious proceedings. In considering a worker who had launched 31 age discrimination claims but not attended court in any of them and had been subject to three costs orders, the EAT held that it was appropriate for such an order to be made. For the full judgment, click here.

Employment Law Events

Justice Equality 2012 Conference
26 June 2012
The Hatton, 51-53 Hatton Garden, London EC1N 8HN

Speakers include Robin Allen QC and the Hon. Mrs Justice Cox. More details here.


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