Employment Law Bulletin - Issue 144 - 20 March 2013

Wednesday 20 March 2013

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Employment News

New timetable for employment law changes
A new document from the government, Employment Law 2013: Progress on Reform, sets out, amongst other things, a revised timetable for its proposed changes to employment law.
The following measures are still due to be introduced in April 2013: changes to collective redundancy, and cost-of-living increases to statutory sick pay and to maternity and related payments.
The Government also intends to introduce Employment Tribunal fees, protected conversations, reductions to the compensatory award, changes to the Tribunal rules, and new rules regarding whistleblowing from summer 2013.
The introduction of a new employee shareholder status, and changes to TUPE, have been put back to October 2013.
The introduction of penalties for employers who lose Tribunal claims and compulsory ACAS conciliation are now likely to take effect from April 2014.

Employment law and legal aid
Changes to legal aid from April 2013 will take most employment law out of scope, leaving only discrimination and trafficking claims. The Bar Council has published guidance on Changes to Civil Legal Aid, including advice as to whether certain types of employment case can receive legal aid through the "exceptional funding" route.

Disclosures in the NHS: to be retrospectively tolerated
Following a press campaign calling for this concession, NHS Chief Executive David Nicholson has told MPs that the NHS will not enforce the confidentiality clauses against past whistleblowers.

Employment Case Law

European Court of Justice

Equal pay

Kenny v Minister for Justice, Case C- 427/11
Article 141 of the EC Treaty provides that member states of the European Community must apply the principle of equal pay for male and female workers for equal work or work of equal value. What happens where employers and unions agree a pay settlement which indirectly discriminates against women; is this an objective factor unrelated to sex discrimination? In a preliminary reference concerning civil servants serving with the Irish police force, where (female) civilian clerks were paid less than (male) police clerks, the CJEU has held that industrial bargaining can be taken into account in establishing whether there was a non-discriminatory objective explanation for the pay difference, but bargaining alone cannot be the only independent factor justifying such different treatment (para 48). The case now returns to the Irish courts for determination. For the full text of the judgment, click here.

Court of Appeal

Reopening disciplinary procedures

Christou & Anor v London Borough of Haringey (Rev. 1) [2013] EWCA Civ 178
As a principle of common law a party may not re-litigate a dispute which has already been determined by the courts ("res judicata"). Does this same principle apply to employers, when they decide disciplinary complaints against employees? In a case involving social workers caught up in the Baby P scandal, who were punished under their employer's procedure and given a written warning, and then later summarily dismissed following a second set of disciplinary proceedings, the Court of Appeal has held that res judicata does not apply to internal procedures. Elias LJ, giving the judgment of the Court held that it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication akin to a judicial tribunal. Accordingly the employees' appeals failed and the dismissal was upheld. For the full text of the judgment, click here.

Costs protection

The Manchester College v Hazel and anor, 15 March 2013
It is open to litigants in the Civil Courts to apply for a costs protection order, i.e. an Order limiting their susceptibility, in the event of defeat, to an Order requiring them to pay the winners' legal costs (from 1 April 2013 this power will be in CPR r.52.9A). In a case where two litigants had succeeded in their unfair dismissal claims before the Employment Tribunal (an ordinarily costs-free jurisdiction), but the employer had appealed to the Court of Appeal (where costs are normally granted to the successful party), where the litigants had modest salaries (they were teachers at a prison) and had agreed not to seek their costs in the event that they succeeded, the Court of Appeal held that a costs protection order was appropriate.

Reasonable responses

Clarence High School & Anor v Boardman [2013] EWCA Civ 198
The fairness of a dismissal is decided according to equity and the substantial merits of the case (section 98 Employment Rights Act 1996); and, as a matter of common law the decision is subject to the "band of reasonable responses test". In other words: a dismissal is only unfair if the decision to dismiss was so unfair that no reasonable employer would have taken it. In a case concerning a teacher who was accused of manhandling a pupil, which she denied, the Court of Appeal overturned a decision of the Employment Appeal Tribunal that the original Tribunal had erred in finding the dismissal fair. The EAT itself erred, the Court held, in focussing on whether the Tribunal had reached sustainable conclusions or not. The focus, at the appeal stage, should be on whether the employer's findings were sustainable. In a case where the Tribunal had found that the employer had carried out a careful investigation, the only possible finding was that the dismissal was fair. For the full text of the judgment, click here.

Employment Appeal Tribunal

Redundancy procedure

Mental Health Care (UK) Ltd v Biluan & Anor [2012] EAT 0248/12
Should an employer carry out a redundancy selection exercise where the employees' capability is assessed on the basis of competency tests without reference to past performance appraisals or the views of current managers? In a case where the employer modelled its competency test on its recruitment process, and a Respondent witness said that he was surprised by the competency results and that several employees who had been selected for redundancy were good employees, Mr Justice Underhill has held that the Tribunal did not err in finding the dismissal unfair. In Underhill's words: "we are not surprised that the Tribunal thought that a blind faith in process - the characteristic déformation professionelle of HR departments - had in this case led to the Appellant losing touch with common sense and fairness." For the full text of the judgment, click here.

Covert recording

Vaughan v London Borough of Lewisham and Ors [2013] UKEAT 0534/12
Can a party adduce evidence in Tribunal proceedings if that evidence has been gathered by covert recording? In principle, the EAT has held, covert recordings can be disclosed, subject to the test of relevance. This in turn means that where a party seeks to rely on such material, it must show that the material is relevant. In a case involving a Claimant holding 39 hours' material, who had previously been subject to costs orders, an Employment Judge erred in finding that the material needed to be independently transcribed, when this would cause a significant cost. The right procedure would be for the Tribunal hearing the decision to assess the relevance of the material based on the Claimant's transcripts. For the full text of the judgment, click here.

Notices and Coming Events

Who is a worker in European Labour Law? And who should be?
21 March 2013, 18:30

Nicola Countouris will address the Industrial Law Society on 'Who is a worker in European Labour Law? And who should be?' at the Royal College of Surgeons of England, 35-43 Lincoln's Inn Fields, WC2A 3PE from 6.30pm. More details here.

The Blacklist Support Group AGM
23 March 2013 from 10.30

At Faraday House on Old Gloucester Street, Bloomsbury WC1N 3AE. More details here.

Back to the Future: the Employment Law Policies of the Coalition
Industrial Law Society, 17 April 2013, 18:30

Bob Hepple will address the Industrial Law Society on 'Back to the Future: the Employment Law policies of the Coalition. For full details click here.


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