Employment Law Bulletin – Issue 147 – 30 April 2013

Tuesday 30 April 2013

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Employment news

Employee Shareholder Status: a right to advice conceded
The Growth and Infrastructure Act 2013 has now received Royal Assent. Section 25 of the Act provides for the introduction of a new employment status of "employee shareholder". Employees in this category will be excluded from various rights including ordinary unfair dismissal rights, the right to request flexible working, and the right to a redundancy payment. They will receive in return shares worth between £2,000 and £50,000. The government has accepted various late concessions to the scheme, including protection against detriment and dismissal for existing employees who decline to transfer over to the new status, a guarantee that social security claimants who refuse a job offer on the employee shareholder status will not forfeit their benefits, and (most recently) a provision to the effect that the status will only be effective if prior to entering into the contract, the employee received advice from an independent advisor, the costs to be paid by the employer.

Tribunal fees: amount confirmed, commencement date still outstanding

The Coalition has now published the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, the secondary legislation giving effect to Tribunal fees. Fees are to remain at the level which the Government had previously indicated (£390 combined hearing and issuing fees for wages cases, £1200 for unfair dismissal and discrimination, £1600 for an appeal to the EAT). There is nothing in these Regulations to clarify when fees will be introduced. The present starting date remains "summer 2013", and employment law advisors may be cautious in booking their holidays to avoid returning to a rush of late, deadline-avoiding cases.

Employment case law

High Court

Proceedings defamation

Vaughan v London Borough of Lewisham & Ors [2013] EWHC 795 (QB)
As a matter of common law, absolute privilege applies to statements made in judicial proceedings. In other words, a claim for defamation cannot succeed even where a defendant has acted with malice, or knew that the information they put forward was false or acted solely to damage the reputation of the claimant. In these circumstances, where a litigant in person applied to the High Court for an injunction limiting the ability of other parties to an Employment Tribunal claim to put before the Tribunal matters likely to damage her mental health, or harass her, or deny their liability to her claim, the High Court dismissed the application in robust terms. For the full text of the judgment, click here.

Employment Appeal Tribunal

Unlawful deduction of wages

Somerset County Council v Chambers [2013] EAT 0417/12
Can a worker bring a wages claim for unpaid pension? The short answer is contained in section 27 of the Employment Rights Act 1996, which defines wages as excluding "any payment by way of a pension ... in connection with the workers retirement." In a case where a worker had succeed in an unlawful deduction of wages claim before the Tribunal, the EAT reversed this decision, directing itself that a pension claim can be brought as a breach of contract claim, but only in circumstances where such claims are allowed under the Extension of Jurisdiction Order 1994. In this case, the Claimant's employment was continuing, and the 1994 Order was not engaged, with the result that there was no jurisdiction to hear his claim. For the full text of the judgment, click here.


Foster v Cardiff University [2013] EAT 0422/12
How should a Tribunal decide a case where the Claimant's ill-health combines two conditions, a disability which has the protection of the Equality Act 2010 and one which does not? The question was posed where a university lecturer suffered from both Chronic Fatigue Syndrome and ordinary anxiety or stress, and where the Tribunal found that what the Claimant really wanted was action to protect frim from anxiety rather than from the consequences of his protected condition of CFS. On appeal, the Claimant argued first that the Tribunal had erred in focussing on the consequences of his condition, rather than the cause of its recurrence (i.e. stress), and second that Article 5 EC Directive 2000/78/EC, to which the Equality Act 2010 gives domestic effect, does not expressly require a comparator, and the requirement of a comparator is therefore incompatible with it. HHJ Singh rejected both arguments. He found that the correct approach in disability cases is to focus on the effects of disability rather than their diagnostic cause. He held in addition that whereas there is no express requirement of a comparator in Article 5 of the Directive, when the Directive is read as a hold, it was clearly intended that a comparator would be needed in reasonable adjustment claims. For the full text of the judgment, click here.

Burden of proof

Asociaţia ACCEPT v Consiliul Naţional pentru Combaterea Discriminării [2013] CJEU case C-81/12
As a matter of European law, can a Court take into account the public statement of someone who is neither a director nor an employee of a business but is closely connected with it, in deciding whether the burden of proof has passed? Yes, the CJEU decided in a case brought by an LBT-right charity, against a football club, one of whose shareolders had said that it would never employee a gay footballer, with the club never repudiating his words. For the full text of the judgment, click here.

Redundancy consultation

Kelly & anor v the Hesley Group Ltd [2013] EAT 0339/12
Where an employer is proposing to make 20 or more employees redundant he must consult with representatives of the workforce (section 189 TULR(C)A 1992). If there is a recognised union, the employer must consult with it. Otherwise the consultation must be with representatives of the workforce, appointed or elected by the workers under threat of redundancy. Where the employer co-opted persons of its own choosing onto a joint consultative committee (i.e. a non-negotiating body), Langstaff J found that this procedure was unlikely to satisfy the statutory requirement and remitted the issue back to the Tribunal for further considerations on its facts. For the full text of the judgment, click here.

Notices & coming events

Employment Law Bar Association
Wednesday 15 May 2013, 6pm

Michael Rubinstein will address the Employment Law Bar Association at Gray's Inn. More details here.


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