Daniel Barnett's Latest - June 22nd
Breach of Contract: Can you recover the excess
over £25k in the High Court?
15 June 2006
At last, after twelve years of uncertainty, we have an answer. The
Court of Appeal has, today, handed down judgment in Fraser v Hlmad
Ltd, holding that the excess over £25k in a tribunal breach of
contract claim cannot be recovered in the civil courts.
Mr Fraser brought a breach of contract claim in the employment
tribunal and the High Court. His Claim Form in the ET expressly
reserved the right to pursue the excess over the 25k GBP limit in
the High Court.
He succeeded in his employment tribunal claim and recovered £25,000,
a shortfall of £55,000 on the full value of his contract
claim.
Following a strike-out appliation by the Defendant in the High
Court claim, the Court of Appeal held:
* Mr Fraser's wrongful dismissal claim merged into the judgment of
the employment tribunal on his wrongful dismissal claim
* his cause of action for wrongful dismissal ceased to exist
independently of the judgment
* he no longer had any cause of action to pursue in the High
Court, even for the excess over £25k
* it is not open to a Claimant to avoid the operation of a cause
of action estoppel simply by purporting to reserve a right to make
a second claim in the future.
As a postscript, the Court of Appeal recommended that the ETS
review their literature to make it clear that wrongful dismissal
claims cannot be brought in the High Court to recover the excess
over £25k.
Mummery LJ also suggested that Claimants and their legal advisers
do not bring wrongful dismissal claims in the employment tribunal
unless they are certain they want to limit compensation to £25k.
If the Claimant wishes to recover more, the claim should only
be brought in the High Court. Finally, he suggested that the DTI
reconsider the limits on the jurisdiction of the employment
tribunal in respect of claims for wrongful dismissal.
Fraser v Hlmad Ltd
BAILII Judgment
Whistleblowing - No Case to Answer
15 June 2006
The EAT (HHJ McMullen QC presiding) has held that it is normally
inappropriate to make a submission of 'no case to answer' at the
end of the Claimant's case in whistleblowing cases.
Whistleblowing is a form of discrimination. As with all
discrimination claims, it is possible that much of the relevant
evidence will come from the Respondent's side. By cutting off a
case at half-time, a tribunal denies the Claimant an opportunity
to cross-examine the Respondent and seek to elicit favourable
evidence - notwithstanding that the burden of proof is on the
Claimant to establish a protected disclosure.
Accordingly the EAT set aside the tribunal's decision to dismiss a
whistleblowing claim on a submission of no case to answer, and
remitted the case to the same tribunal to hear the rest of the
evidence.
Boulding v Land Securities
BAILII Judgment
National Minimum Wage from 1 October 2006
-----------------------------------------
The draft statutory instrument, raising the adult minimum wage to
£5.35 ph from 1st October 2006, has been laid before
parliament. It also increases the minimum wage to £4.45 ph for
18-21 year olds, and to £3.30 ph for 16-17 year olds.
Holiday Entitlement - Consultation
13 June 2006
The DTI has issued a preliminary consultation paper on extending
the right to 20 days' paid holiday per year to 28 days' paid
holiday.
The additional eight days are intended to represent the eight bank
holidays, so as to allow employees a minimum of 20 days' plus bank
holidays (although the holiday need not be taken on the bank
holidays).
View Consultation Paper
DTI Site
Nurse Chaperones
10 June 2006
The EAT has held that an NHS Trust discriminated against a male
nurse who was required to have a female chaperone present when
administering an ECG to a female patient.
Barts and London NHS Trust has a policy, in common with many other
NHS Trusts, of requiring male nurses to be accompanied by a female
chaperone when administering an ECG to a female patient, because
the procedure would involve touching the patient's breasts. This
might give rise to unjustified allegations of assault - hence the
desirability of a chaperone. No similar requirement exists when a
female nurse administers an ECG to a male patient.
The EAT recognised that such a policy was extremely sensible.
Nevertheless, upholding the tribunal's decision, it noted that
justification cannot be a defence to direct discrimination and
therefore the Trust's policy was in breach of the SDA 1975.
It also held (overturning the EAT) that the male nurse, who felt
upset and demotivated, had suffered a detriment - and therefore
was entitled to compensation. It was an error of law for the
tribunal to find that he had not suffered a detriment simply
because no reasonable person could have objected to the policy. To
find that was to introduce a justification defence by the back
door. The test for establishing a detriment is much broader.
Accordingly the nurse's appeal succeeded. The EAT substituted an
award for injury to feelings of £750, which it described as "very
much at the lower end of the scale."
Moyhing v Barts & London NHS Trust
BAILII Judgment
North East Equal Pay Litigation
9 June 2006
The employment tribunal's decision in Allan v GMB was handed down
earlier this week.
In a claim brought by five test Claimants against the GMB, the GMB
has been held liable for sex discrimination and victimisation in
failing to pursue Middlesborough Borough Council in connection
with a long-running equal pay dispute.
The decision (139 pages) is deeply critical of the GMB, including
findings that it misled and manipulated its "relatively
unsophisticaed" members (paras 7.59 and 7.66), "rushed headlong
into accepting an ill-considered pay deal" (para 7.60) and
"neglected the interests of the back pay Claimants" (para 7.61).
The tribunal also found that the GMB victimised those of its
members who had chosen to be presented by an external solicitor,
by impeding the settlement of their claims with the Council, on
the grounds that it regarded them as "pariahs" (para. 7.73).
The remedies element of the claim has been adjourned, and the GMB
has indicated an intention to appeal. According to an item on the
BBC news website, the potential cost to the the GMB is expected to
exceed £1,000,000.
Allan v GMB
Employment Tribunal Decision:
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
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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
Hear audio testimonials or view some sample pages:
http://www.danielbarnett.co.uk/age_analysis_testimonials.htm