Daniel Barnett's Latest - December 17th

Daniel Barnett's Latest News

The following case summaries are provided courtesy of Daniel
Barnett to whom we are very grateful:

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When is A Disclosure Not A Disclosure?
13 December 2006
In Bolton School v Evans, the Court of Appeal handed down an
important decision dealing with the extent of what does (and does
not) amount to a 'disclosure' under the Public Interest
Disclosure Act 1998.
Michael Evans was an IT teacher at Bolton School. He resigned and
claimed constructive dismissal, following the imposition of a
formal warning from the School after he disabled some of the
service accounts on the Respondent’s computer network from a
pupil’s PC in order to demonstrate flaws in the network’s
security, having obtained permission to do so in advance.
He claimed he had suffered a detriment as a result of disclosing
the Respondent’s breach of its data protection obligations. The
Respondent claimed that the Appellant was disciplined for his
misconduct in ‘hacking’ into the computer system, and not for any
act of disclosure.
Buxton LJ, giving the judgment of the Court, held that in section
43B of the ERA, the word ‘disclosure’ should be given its common
meaning, which limits disclosures to the utterance of the words
to the employer about the breach of their obligation, and does
not extend to any of the surrounding circumstances. The Court
rejected the Appellant's arguments that it is necessary to view
the circumstances surrounding the utterance as part of an “entire
disclosure transaction”.
The Appellant is seeking permission to appeal to the House of
Lords, which has not yet dealt with a whistleblowing case.
Bolton School v Evans
BAILII Judgment

Paternity Leave
13 December 2006
Last month the DTI issued - and, curiously, immediately buried -
its response to its consultation on additional paternity leave
and pay.
The government has decided to grant employed fathers a new right
of up to 26 weeks' Additional Paternity Leave, some of which
could be paid, if the mother returns to work. Draft Regulations
will be issued, and put out to consultation, next year. Click
here to view the full response:
http://www.dti.gov.uk/files/file35584.pdf
The response paper is hidden deep within the bowels of the DTI
website. Unusually, no press release was issued, nor was this
announced on the DTI's 'What's New' page. No doubt this was an
oversight but - hey - that's open government for you!
Thanks to Gaby Charing, Policy Adviser (Discrimination &
Employment Law) to the Law Society's Law Reform & Legal Policy
Team for telling me about this.

Young Man, There's No Need to Feel Down...
11 December 2006
Last week, in YMCA Training v Stewart, the EAT (Underhill J.
presiding) handed down an important decision on the statutory
dismissal procedures.
Most of the decision is by a majority (one of the wing members
dissenting), but it is unlikely that other courts will take a
different view. The EAT held:
* an initial investigatory meeting can amount to a Step 1 meeting
(paras. 9 and 11)
* the decision to dismiss can legitimately be communicated during
the Step 2 meeting (obiter, para. 16), although the interesting
question as to position if the decision is already made (i.e. a
'sham' procedure) did not fall to be considered
* by way of assumption (rather than discussion), that the
Alexander v Bridgen Enterprises line of authorities are correct
in that when considering whether the employer would still have
dismissed if it had followed a fair 'procedure', the word
'procedure' should be interpreted widely rather than narrowly.
This is an important case - and one worth reading.
Read YMCA v Stewart
EAT Judgement (word document)

but don't click here:
http://www.lyriczz.com/lyriczz.php?songid=16102

Inconsistent Decisions
11 December 2006
The EAT has handed down a useful decision dealing with
inconsistent sanctions by employers during the dismissal process.
A firm of solicitors dismissed one of their solicitors, mainly
for missing a limitation deadline. At least one other solicitor
had not been dismissed for that reason in the past.
Overturning a finding of unfair dismissal, HHJ Richardson held
that the authorities, in particular Hadjioannou v Coral Casinos
Ltd [1981] IRLR 352, make clear that questions of disparity with
earlier treatment must not be allowed to supplant the statutory
test under ERA s98(4). As the ET had found that the substantive
treatment of the Respondent was fair, the procedures were
reasonable and the dismissal was amongst the band of reasonable
responses, by finding that the Respondent was unfairly dismissed
it had “lost sight of the true question posed by the statute”.
Also overturning the ET's findings of discrimination, the EAT
stated at paragraph 37 that the key question was whether the
decision to dismiss was wholly, or in part, on grounds of race.
If the burden of proof transferred, the employer had to show that
the decision to dismiss was not taken on racial grounds. If they
succeeded in proving that matter, the fact that they might have
previously treated another employee of a different race leniently
was not to the point.
Levenes Solicitors v Dalley
BAILII Judgment

Boring But Important...
1 December 2006
It's wet, cold and windy. No, not Temple Gardens as I stare out
my window, but the UK Continental Shelf. For those who are
thinking, 'err.. what?', it's the area of sea bed and subsoil,
often as much as 200 miles beyond the UK's 12 nautical miles of
territorial waters, over which the UK exercises sovereign rights
of exploration and exploitation of natural resources (gas, oil
etc.).
So, imagine this... Lots of miserable people on oil rigs. They
want to go on holiday and say, "I want my four weeks' holiday
under the Working Time Regulations". But their employers reply,
"Actually, the Working Time Regs don't apply to you, because of
some really obscure technical wording. Ha ha ha."
So, off troop the workers to the Employment Appeal Tribunal. And
Lady Smith, in an erudite and technical 36 page judgment, upholds
the ET's decision that the holiday provisions of the Working Time
Regulations do apply to workers on the UK Continental Shelf.
I should point out (just to be fair) that the employers contend
that they had provided the four weeks' holiday - although this
was denied by the workers. This has yet to be decided by the
tribunal...
Read this case if you advise clients on offshore installations,
if you are an EU aficionado, or if you are just incredibly clever
and enjoy reading complicated decisions.
Thanks to Andrew Stafford QC of Littleton Chambers, who acted for
the successful workers, for sending me this decision.
Transocean International Resources & ors -v- Russell & ors
EAT Judgement (word document)

Dismissals Following Bullying-Induced Stress Absence
30 November 2006
The EAT has handed down a decision dealing with the fairness of a
dismissal where the employee was on long-term stress-related sick
absence, caused by bullying and mismanagement at work.
The employment tribunal held that the dismissal was unfair
because no reasonable employer would have bullied and mismanaged
the employee.
The EAT, expanding on the law in Edwards v Governors of Hanson
School, held:
* the fact that the employer has caused the incapacity in
question, however culpably, does not preclude it from ever
effecting a fair dismissal
* the real question is whether the employer acted reasonably
"in all the circumstances" - and the circumstances include the
fact that the employer was responsible for the original absence
* where the employer is responsible for an employee's
incapacity, it should normally be expected to "go the extra mile
in finding alternative employment for such an employee, or to put
up with a longer period of sickness absence than would otherwise
be reasonable" (see para. 4)
Royal Bank of Scotland v McAdie:
EAT Judgement (word document)

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

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"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

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