Daniel Barnett's Latest - August 21st

Daniel Barnett's NEW age discrimination web video seminar
On 19th and 26th September 2006, I'm presenting another two web
seminars on age discrimination.

But this time, I'll be standing in a TV studio and transmitting it
live!!

Watch a live video web feed. Ask questions through your computer.
Get CPD. And all from the comfort of your own desk.
Click here for details, testimonials and a booking form

complete with recorded announcer!!!

Mutuality of Obligation
22 August 2006
The EAT has, in a decision handed down yesterday, neatly
circumvented the requirement for mutuality of obligation in an
employment contract.

The Claimant, a TV reporter for ABC, was employed under a
framework agreement whereby ABC was obliged to offer him at least
100 days' work a year, and he was entitled to either accept or
refuse the assignment(s).

The employment tribunal held that there was no mutuality of
obligation, since the Claimant was not obliged to accept any work.

The EAT, striving to reach a decision which was plainly fair on
the facts (read the judgment!), held that there was an implied
obligation for the Claimant to decide whether to accept or refuse
assignments in good faith. Thus mutuality could be implied into
the arrangements, and the Claimant achieved continuity of
employment to bring an unfair dismissal claim.

The judgment also contains some interesting (but largely
fact-sensitive) comments on the scope of ERA 1996, s100
(automatically unfair dismissals for health & safety reason).

ABC News International v Gizbert
BAILII Judgment

Judicial Mediation Pilot
18 August 2006
A new Judicial Mediation Pilot Scheme has been launched.

With the parties' consent, the case will be stayed pending
mediation by a full-time tribunal chairman (specially trained for
the purpose). The mediation can last for up to two days.

It applies to sex, race and disability discrimination cases,
normally where there is an ongoing employment relationship. The
trial is running for 6-12 months in Birmingham, London Central and
Newcastle (Newcastle will also be mediating equal pay claims).

A guidance note for parties is available, giving further
information about the pilot scheme. I've got a rather poor faxed
copy of it here, but better copies are probably available
somewhere!

Thanks to Ed McFarlane of RBS Mentor for telling me about this.

Paying tax twice
15 August 2006
The heading makes this case sound boring, but it is important.

This case is authority for the proposition that HM Revenue and
Customs is entitled to charge an employer full tax and NI under
the PAYE regulations, where the parties have wrongly viewed the
employee as self-employed, without giving credit for the tax and
national insurance already paid directly by the 'employee'.

Mr Bone and his employer genuine believed he was self-employed.
For some ten years, he sent invoices and was paid gross. He
completed annual accounts and paid his own tax.

The Inland Revenue (as it was then called) then decided that he
was employee rather than self-employed, an assessment with which
the Special Commissioner agreed. Following a failure by the
employer to agree back-tax, the Revenue levied a tax determination
for the full amount of tax, without giving credit for the tax
which the individual had been paying each year.

The Special Commissioner upheld this approach. He suggested that
the Revenue negotiate an appropriate settlement to give credit for
the tax already paid, but he had no power to order such credit.

The effect of this decision is that the Revenue can recover tax
twice in a situation where an individual has been paying tax
(wrongly) as a self-employed person. Often the individual will be
able to recover his own payments of tax in subsequent years;
however (as here), sometimes the payments date back too far and
the employee will have lost the right to claim back previous
overpayments.
Demibourne Ltd v HM Revenue & Customs
BAILII Judgment

Reasons
15 August 2006
Regulars in the EAT will be all too familiar with 'reasons'
appeals, where it is argued that a tribunal failed to give a
sufficient explanation of why they reached their conclusions -
hence making it impossible to see whether they fell into an error
of law.
The seminal case on this is English v Emery Reimbold (2002, CA).
The Court of Appeal has now heard another case, which it describes
as 'following on' from English.

In McLoughlin v Jones, the Court of Appeal had to decide on the
impact on the decision if one of several reasons given by a judge
turns out to be wrong.

Arden LJ, giving the leading judgment, robustly emphasises the
reluctance of an appellate court to interfere with the decision
below. Her judgment is lengthy, involving a trawl through findings
of fact (in a professional negligence case).

The core paragraphs are paras. 72 and 74. The Court holds that a
first instance decision should not be overturned where the
"overriding reason for rejecting the claim remains" -
notwithstanding the presence of four errors in the court's
decision.

Arden LJ continues to say (para. 74), "It is necessary, in my
judgment, to look at the imperfections in the judgment as a whole,
cumulatively. Even so, they are not in my judgment to shake the
foundations on which the judgment was based".

'Shaking the foundations of the judgment' - a pretty high test?
Certainly one which, if followed by the EAT, will result in far
fewer 'reasons' appeals succeeding (or being allowed through the
sift).

McLoughlin v Jones
BAILII Judgment


No duty to pay full pay to disabled employee when off sick
7 August 2006
The Employment Appeal tribunal has handed down an important
Disability Discrimination Act case, dealing with whether a failure
to pay disabled employees full pay when off sick is either a
failure to make reasonable adjustments, or disability-related
discrimination.

The employer (HM Revenue & Customs) offers six months' full pay to
all employees who were absent from work on grounds of health,
followed by six-months on half pay. Mrs O'Hanlon, who was
clinically depressed, claimed that the failure to pay her during
her absence at full pay was either a failure to make reasonable
adjustment to compensate for her disability, or unjustified
disability-related discrimination.

The EAT held:

    * it will be "a very rare case indeed" where the duty to make
reasonable adjustments entails paying a disabled absent employee
more than a non-disabled absent employee (para. 67), as to do so
would mean "the Tribunals would be entering into a form of wage
fixing for the disabled sick" (para 68). It would also fall foul
of the DDA's policy objective, which is to assist the integration
of disabled people into the workplace. If the DDA required
employers to provide or enhance long-term sick payments to
disabled people, it would actually be providing a disincentive to
them returning to work (para. 69)

    * a reduction of pay because of sick absence is - where the
employee is disabled - disability-related discrimination. The
reason for cutting pay is that the employee is absent for 26
weeks, and the underlying reason for her absence was her
disability (paras. 83-87)

    * however, the disability-related discrimination (not paying
full pay) was justified. Once it is established that the duty to
make reasonable adjustments does not require an employer to pay
full pay to a disabled absent employee, it is very easy to
establish that a failure to make such payment is justified.


As readers know, once in a while I recommend reading decisions
simply for the clarity of reasoning and the useful overview of the
law. This is one of those cases. Read it.

O'Hanlon v HM Revenue & Customs
BAILII Judgment


Statutory Grievance / Tribunal Procedure

31 July 2006
The EAT has handed down a decision dealing with an interesting
little problem arising from the statutory grievance procedures.

The Claimant brought three discrimination claims to which the
statutory grievance procedure applied. In respect of claim 1, she
had waited the mandatory 28 days after submitting a step 1
grievance letter before presenting her claim. In respect of claims
2 and 3, the employer had completed its internal grievance
procedure and she therefore presented her claims before the 28 day
window had elapsed.

The tribunal heard all three claims, stating it would reach a
decision on its jurisdiction to hear claims 2 and 3 as part of its
substantive decision. It told the parties that if it found it
lacked jurisdiction, it would simply express preliminary
conclusions on claims 2 and 3. The Claimant would then be able to
re-present those claims, as she was still within the extended
limitation period.

In the event, the tribunal found in her favour but found it lacked
jurisdiction. She presented fresh claims. By agreement, the
evidence at the first hearing was allowed to stand as evidence at
the second hearing. However, the tribunal refused to allow the
employer to adduce further evidence at the second hearing, on the
basis that the overriding objective meant the employer should not
have a second bite at the cherry. Unsurprisingly, it found in
favour of the employee.

The EAT (Elias P. presiding) held that the tribunal was wrong to
refuse to allow the employer to adduce further evidence. It held
(para. 30) that the employer is entitled to adduce evidence before
a tribunal which has jurisdiction to hear the claim.

Interestingly, the EAT was critical of the existence of the 28-day
period when an employee cannot present a tribunal claim -
particularly in circumstances such as this where the parties had
been through the internal grievance procedure within that period,
where the bar on an employee bringing a claim was said to be "most
unsatisfactory" (para. 29).

Exel Management Ltd v Lumb
BAILII Judgment

Working Time / A 'Week's Pay'

26 July 2006
The EAT has handed down a decision dealing with the complicated
question of what does (and does not) fall within the category
where "the employee's remuneration for employment in normal
working hours...does vary with the amount of work done in the
period". Readers will be aware that, under s221 of the Employment
Rights Act 1996, a 'week's pay' is averaged over 12 weeks when the
remuneration varies as above but not (normally) otherwise.

A problem has always occurred where workers are paid commission.
Does their remuneration vary depending on work done? This is not
straightforward, particularly if their working hours and
activities do not change, and the question of whether they secured
the 'deal' (and hence the commission) is dependent on luck or
external factors.

The EAT (Elias P. presiding) held that where pay is related to
output, and output is in turn significantly connected with the
level of performance, then it can properly be said that pay varies
with the work done. Thus in a typical 'productivity' scheme, where
remuneration varies depending on output, a week's pay should be
calculated by averaging over 12 weeks and not simply pitching
remuneration levels at a specific, frozen, single week.

May Gurney Ltd. v Adshead (& 95 others)
BAILII Judgment

Working While Asleep
19 July 2006
The EAT has held, in Anderson v Jarvis Hotels, that a hotel night
manager was entitled to be paid for work even when fast asleep.

The manager brought a claim for unpaid contractual wages (note:
not under the Working Time Regulations) in respect of a nine month
period when he was required to sleep at the hotel overnight. His
presence was required in case of emergency (such as fire or
flood), and in the nine months, he had only ever been required to
work on one occasion (to deal with rowdy guests). On one other
occasion he had left the hotel for half an hour, between 3.30am
and 4am, and had received a verbal warning as a result.

The hotel argued that 'on call' time, where the risk of actually
being required to do something was insignificant, should not be
regarded as working time for the purpose of being paid under the
contract of employment.

The EAT disagreed, overturning the employment tribunal. It held
that time during which the manager was contractually obliged to be
present at the hotel was plainly working time, and he was entitled
to be paid in respect of it.

Anderson v Jarvis Hotels
BAILII Judgment


Strike Outs
18 July 2006
Yet another EAT judgment overturning a chairman's decision to
strike out a claim ...

This case is authority for the proposition that a chairman is
under an obligation to consider an adjournment (as an alternative
to strike-out), even if the parties do not raise the possibility
of an adjournment themselves.

All six Claimants were in breach of an order to exchange witness
statements two weeks before the hearing (the strike-out
application was heard one week before the hearing). Further, three
of the six Claimants had failed to comply with an order that they
provide a Schedule of Loss (the other three had provided a
Schedule, but done so later than the date specified in the Order).

The chairman held that it was not possible to hold a fair trial
the following week and struck out the claims. Neither side had
raised the possibility of an adjournment.

The EAT (Cox J.) held that it was incumbent on the chairman to
consider an adjournment, and to canvass the possibility of
adjourning with the parties. It was an error of law to consider
only "a fixed moment of fairness" (para. 23). She allowed the
appeal and reinstated the claims.

Ridsill v Smith & Nephew Medical
BAILII Judgment



Take a look at the following items from Daniel Barnett, barrister
(http://www.danielbarnett.co.uk):

Law Society Handbook on Employment Law
by Daniel Barnett and Henry Scrope
 
Third edition just published
£49.95
Click here for more details
http://www.danielbarnett.co.uk/publications_lawsoc.htm
 
To subscribe to Daniel's Newswire, go to his smart new site:
http://www.danielbarnett.co.uk/bulletins.htm
 
Daniel Barnett Archive Now Available
By arrangement with emplaw, an archive for Daniel's bulletins is
now available: http://www.emplaw.co.uk
 
"Age Discrimination" - yet another useful publication from Daniel
Barnett.
Second Edition - Published 3 May 2006
* 170 pages of commentary and analysis on the Employment Equality
(Age) Regulations 2006
* highlighting practical difficulties for employers and legal
advisors
* sets out arguments on both sides when the Regulations are
unclear
Click here to see a sample and for more information:
http://www.danielbarnett.co.uk/age_analysis.htm
 
Hear audio testimonials or view some sample pages:
http://www.danielbarnett.co.uk/age_analysis_testimonials.htm