Employment Law Bulletin – Issue 134 – 2 October 2012

Tuesday 2 October 2012

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Employment news

Consultations remain open

The Government's consultations on settlement agreements and Tribunal procedure remain open.

Blacklisting: companies in the firing line

The Mirror reports that former construction workers have now begun a £600 million blacklisting claim against companies including Sir Robert McAlpine, Balfour Beatty, Carillion, Amec, Skanska and Taylor Woodrow. The issue is also due to be debated at this week's Labour Party conference.

CABx: representation rates falling

Figures published by the Citizens Advice Bureau show that the number of Claimants represented by CABx advisers at Tribunal hearings has fallen by around 34% (from 2900 to 1900) in four years. The overall rate of claimant representation (ie by any representative, whether union, solicitor or otherwise) has however been static from 2009-2010 to 2011-2012 at 81%.

Employment case law

Employment Appeal Tribunal

Reduction in compensation (Polkey)

Nejjary v Aramark [2012] EAT 0054/12
When deciding on whether a dismissal is fair, the Tribunal must focus on the reason for the dismissal (section 98(4) ERA 1996). When deciding whether the dismissal is for a fair reason, the "reason" is the one operative in the mind of the employer at the time of the dismissal (Orr v Milton Keynes Council [2011] ICR 704). Where a Tribunal decides whether to apply a Polkey-limit to compensation for unfair dismissal do the same principles apply; and in particular is it legitimate to reduce compensation for dismissal by 100% in circumstances where there were other negative factors which were not in the mind of the employer at the time of dismissal? The EAT has held, HHJ Luba presiding, that the power to reduce compensation only applies to matters "caus[ing] or contribut[ing]" to a dismissal (section 123(6) of the ERA). In a case therefore where an employer made no reference to past warnings when dismissing a worker, it was illegitimate for the Tribunal to rely on these warnings when making a Polkey reduction. It should be noted that, logically, this decision would also apply more widely, for example, to prevent an employer from relying on misconduct post-dating a decision to dismiss. For the full judgment, click here.

Mitigation

F & G Cleaners v Saddington & Ors [2012] UKEAT 0140/11
A claimant who has been dismissed must mitigate their loss, eg by applying for work with alternative employers. Where a claimant has failed to mitigate his or her loss, it may appropriate for a Tribunal to reduce any compensation accordingly, but this investigation should take in all the relevant circumstances including the nature of the offer and the mindset of the claimant (Wilding v British Telecommunications [2002] IRLR 524). There is no duty to mitigate before the Claimant is dismissed (Savoia v Chiltern Herb Farms [1981] IRLR 65). Nor is there a duty to mitigate where the "mitigation" is an offer of the Respondent to re-engage a Claimant on substantially worse terms than he or she enjoyed prior to the dismissal. Accordingly the EAT (HHJ Burke presiding) refused an appeal brought by an employer, seeking a reduction in an award where the Employer had made offers to re-engage the Claimants before and seemingly (although this was not entirely clear) after dismissal, and the offer was on worse terms than their previous employment. For the full judgment, click here.

Burden of proof in discrimination claims

City Council Millwood [2012] UKEAT 0564/11
In discrimination claims, where a Claimant proves facts from which the court could decide in the absence of any other explanation there has been discrimination, the court must hold that the treatment was discriminatory unless the Respondent proves facts showing that there was no discrimination (Equality Act 2010 s.136). But how much must a Tribunal find before concluding that there was discrimination? There is settled case law that it is insufficient to find mere difference of treatment (as, eg, when two people of different races both applied for one job and only one was appointed, inevitably there must have been differential treatment; that, by itself will not be sufficient to prove discrimination. Is it enough to have difference of treatment, plus an inadequate explanation by the Respondent? The EAT has held (Langstaff J presiding) that the burden of proof should only shift on differential treatment plus "something more". Therefore, in a case where a Tribunal found that the employer's explanation for misconduct was unpersuasive, but not dishonest, the EAT held that the case should be remitted back to the same Tribunal to reconsider whether the Claimant had indeed done enough for the burden to shift. For the full judgment, click here.

Notices & coming events

Garden Court is hosting an inaugural Garden Court Human Rights Film Festival during October and November 2012. It comprises six film screenings exploring different human rights issues connected with the work we do, followed by panel discussions. For more details, click here.

The Discrimination Law Association conference "Equality Act 2010: Keeping the show on the road" will be held on Friday 5th October. For more details, click here.

 

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