Daniel Barnett's Latest - October 20th
Daniel Barnett's Latest News
The following case summaries are provided courtesy of Daniel Barnett:
Statutory Disciplinary / Grievance Procedures16 October 2006
The EAT has handed down a decision (London Borough of Lambeth v
Corlett) dealing with two points on the statutory dispute
resolution procedures:
Extension of Time
The EAT held that a breach of contract claim dealing with failure
to pay notice (following a summary dismissal) fell within the
'dismissal' provisions of the 2004 regs, so as to attract an
extension of time for bringing a claim, rather than the
'grievance' section (which does not actually apply to breach of
contract claims). The EAT's reasoning is possibly controversial
(paras 11 and 12) but the result seems a fair one, to make up for
the political decision by the DTI to exclude breach of contract
claims from the extention of time rules.
Discrimination: grievances against fellow employees?
On 31/8/06 I reported Bissett v Martins, which is authority for
the proposition that the statutory grievance procedures do not
apply when an employee brings a discrimination claim against a
fellow employee, criticising the reasoning of the EAT.
HHJ Peter Clark has now officially cast doubt on the reasoning in
Bissett and stated that, whilst he did not need to decide the
point, it will fall for decision in the future as to whether
Bissett was correctly decided (paras. 25-27).
London Borough of Lambeth v Corlett
BAILII Judgment
Update: High Court Challenge to Age Regulations
5 October 2006
As reported in my bulletin of 4/7/06, Heyday (an organisation
created by and closely associated with Age Concern) has issued a
judicial review application in the High Court challenging the
legality of the Employment Equality (Age) Regulations 2006.
In essence, they argue that the Regulations permit forced
retirement at age 65, which is inconsistent with the EU Equal
Treatment Framework Directive.
At a recent permission application, the Divisional Court has
'rolled-up' the permission and substantive JR applications, to be
expedited and heard together on December 6th 2006.
For Heyday's report, see here:
And it's worth having a look at their interesting 'Six myths
about Forced Retirement', on pages 8 and 9 of this document:
Enhanced Redundancy Payments
5 October 2006
The Court of Appeal has, today, handed down judgment in Keeley v
Fosroc International Ltd..
For once, it's easy to summarise. Here goes...
Where a staff handbook contains details of an enhanced redundancy
payment, there is a presumption that it has contractual status
(rather than 'policy' status) and can be relied upon by an
employee to bring a breach of contract claim.
If you're running any cases where this is an issue, paragraph 34
is the one to read.
Keeley v Fosroc International Ltd.
BAILII Judgment
Strike Outs
4 October 2006
The EAT has handed down an interesting and practical decision
dealing with strike outs.
The employer had been in breach of various tribunal orders. It
then turned up to a two-day tribunal hearing, having not
peviously served witness statements, clutching a 26-page
statement which the Claimant was unable to deal with. The
tribunal debarred the employer from defending the liability
hearing, on the basis a fair trial was not possible, but allowed
it to contest quantum.
The EAT upheld the decision to debar the employer from contesting
liability. Importantly (and usefully for defaulting litigants),
the EAT pointed out that an adjournment, with the consequent
delay, is not usually going to be enough to mean a fair trial is
not possible - see para. 17.
However, the two additional factors which meant a fair trial was
not possible were:
* the employer had seen the Claimant's statements before drafting
its own, giving it an unfair advantage (para. 14); and,
* the Claimant's barrister was acting pro bono, and s/he might
not have been available at any adjourned hearing (also para. 14).
Premium Care Homes v Osborne
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