Daniel Barnett's Latest - November 12th
Daniel Barnett's Latest News
The following case summaries are provided courtesy of Daniel Barnett:
Collective Redundancies and Protective Awards7 November 2006
In an important decision, the EAT (Burton J. presiding) has held
that employees who are not of a description in respect of which a
trade union is recognised by their employer are not entitled to
'cash in' on a protective award obtained by the union.
Recognising that allowing such employees to obtain the benefit of
a protective award would be a more elegant (and less litigious)
alternative to requiring them to bring their own individual
tribunal claims under TULR(C)A s189, Burton J. held that the
wording of ss188 and 189 did not allow such employees to rely on
the protective award obtained by a recognised trade union.
As this case involved an untested (and important) point,
permission has been given to appeal to the Court of Appeal. It
is. however, unclear whether any appeal will in fact take place
as the amounts of money involved do not appear large and the EAT
has strongly encouraged settlement.
TGWU v Brauer Coley (in administration)
BAILII Judgment
Holiday Pay for Long-term Sick Workers - Off to the ECJ
3 November 2006
In April 2005, the Court of Appeal held that the right to four
weeks' statutory paid holiday under the Working Time Regulations
1998 does not continue to accrue whilst an employee is off on
long-term sick-leave (see Commissioners for the Inland Revenue v
Ainsworth, summarised in bulletins 22/4/05 and 3/11/05). But all
did not rest there, for the employees appealed to the House of
Lords.
The case was due to be heard by the House of Lords on Monday and
Tuesday this week (confusingly, under the new name of HMRC v
Stringer). However, the House of Lords has remitted the issue to
the European Court of Justice. The precise wording of the
questions to be put to the ECJ is still under consideration and
it is understood that is likely to be finalised within the next
ten days or so.
Thanks to Henry Scrope of http://www.emplaw.co.uk for providing
me with this information
New from Acas - Sexual Orientation
2 November 2006
Acas has just launched its eight e-Learning packgake - this one
on Sexual Orientation. The course focuses on:
* defining sexual orientation and gender reassignment
* explaining the legal aspects of the sexual orientation
Regulations
* explaining how the Regulations affect recruitment and existing
employees
* exploring issues around gender identity
... and finishes up with a quiz so you can see how much you have
learned. You can also find a sexual orientation audit tool on the
Acas website.
Acas E-Learning Guides
http://www.acas.org.uk/elearning/index.asp?err=2
You have to log in to gain access - registration is free.
Ministers of Religion Can Claim Unfair Dismissal
27 October 2006
The EAT has, today, handed down a decision holding that ministers
of religion can claim unfair dismissal.
Ministers of religion have been regarded by the UK courts as
appointed to a holy office and not as employees of a church. In
December 2005, the House of Lords held that they might qualify as
employees for the purpose of discrimination claims, but left the
position regarding unfair dismissal open (see bulletin 15/12/05).
The EAT (HHJ Ansell presiding) has now held that the old cases
stating that ministers are not employees for the purposes of
unfair dismissal claims cannot stand: "if the relationship
between church and minister has many of the characteristics of a
contract of employment…these cannot be ignored simply because the
duties are of a religious or pastoral nature” (para. 27).
New Testament Church of God v Reverend Sylvester Stewart
BAILII Judgment
s98A: Partial Reversal of Polkey
19 October 2006
The EAT has handed down another decision dealing with the
controversial interpretation of s98A(2) of the Employment Rights
Act 1996.
This provision, often referred to as the partial reversal of
Polkey, states that "a failure by an employer to follow a
procedure in relation to the dismissal of an employee shall not
be regarded...as by itself making [the dismissal unfair] if he
shows that he would have decided to dismiss the employee if he
had followed the procedure." This defence can only be invoked if
the employer has complied with the statutory dismissal procedure.
Earlier this year, two divisions of the EAT handed down two
judgments dealing with what was meant by 'a procedure'.
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held
that the word 'procedure' applies to any procedural failing,
including (say) general breaches of the Acas Code of Practice. By
contrast, in Mason v Ward End Primary School, HHJ McMullen
adopted a narrower approach, holding that procedural defects
which were capable of being ignored by virtue of s98A(2) applied
only to formal procedures, such as those incorporated into a
contract or handbook.
In a judgment handed down this morning, the EAT in Kelly-Madden v
Manor Surgery has "diffidently" preferred the approach in
Alexander v Bridgen. Elias P., giving the judgment, explains why
he believes parliament intended the partial reversal of Polkey to
be wider rather than narrower (paras. 34-49).
The position remains that there is a conflict of authorty on this
very important issue. Clarification from the Court of Appeal,
please...
Kelly-Madden v Manor Surgery
EAT Judgment
Word File
Claim Forms - Missing Information
18 October 2006
The EAT has held that the failure by a Claimant to include her
address on her Claim Form (as required by the rules) is not
necessarily a fatal omission.
Under rules 1 and 3 of the Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2004, all Claim Forms must
contain certain required information or they will not be
accepted. Amongst the required information is "each Claimant's
address".
Ms Hamling left the address space blank, but completed box 12
with the details of her solicitors (including their address).
In a wonderful example of judicial sophistry, the EAT held that
the phrase "The Secretary shall not accept the claim...if it is
clear to him that...the claim does not include all the relevant
required information" meant that the Claimant's address had to be
relevant to the substance of her claim - and it was not (paras.
36-37). This is nonsense - the word 'relevant' refers back to the
list of mandatory items to be included in a claim form (set out
in rule 1), and not to a value judgement on the importance or
significance of that information.
The EAT went on to hold, following Burton J. in Richardson v U
Mole, that the Claimant's address was not a material omission
(paras. 38-39). This is a much better reason for its decision!
Ultimately, this again shows the appellate courts' willingness to
stretch the wording of the rules so as to prevent technical
points depriving a Claimant (or Respondent) of justice.
Hamling v Coxlease School
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