Daniel Barnett's Latest - June 8th

 Reviews, Rehearings and DDA
31 May 2006
The Court of Appeal has handed down its judgment in Taylor v OCS
Group Ltd., dealing with issues relating to unfair dismissal and
disability discrimination.
Unfair Dismissal
The Court of Appeal stated that the distinction between reviews
and rehearings (in connection with appeals against dismissal) is
unhelpful. The essential question when deciding whether a
dismissal is fair under ERA 1996, s98(4) is whether the employer
acted reasonably. There is no rule of law providing that a
'rehearing' can cure earlier procedural defects, whereas a
'review' cannot.
In particular, the Court held:
* if a first hearing is defective, the appeal can cure the defect
if the appeal is comprehensive (para. 37)
* to the extent that the well-known case of Whitbread v Mills
suggests that a rehearing can cure defects, whereas a review
cannot, Whitbread should no longer be cited to tribunals (para.
47)
Disability Discrimination
This part of the judgment is not quite as easy to understand. The
Court appears to be stating that, in order to establish a claim of
disability-related discrimination under the DDA 1995:
* an employer must have in mind the disability-related reason
(para. 70). Unless that reason affects the employer's mind, he
cannot discriminate (para. 72)
* but the employer does not necessarily have to intend to
discriminate on disability-related grounds. Discrimination can be
unconscious as well as intentional (paras. 72-73)
On the facts, an employer who had dismissed a profoundly deaf
employee for misconduct, in circumstances where the employee had
not had a fair disciplinary hearing because of his inability to
understand what was going on, was found by the Court of Appeal not
to have been discriminated against disability-related grounds.
Taylor v OCS Group Ltd
BAILII Judgment

Age Discrimination - New DTI Factsheets
30 May 2006
The DTI has just published eight 'age legislation factsheets'.
They provide concise advice on topics such as 'objective
justification', 'service related benefits', 'occupational pension
rights' and 'redundancy'.
To view, click the link below and then follow the links on the
right-hand side of the page.
View DTI Age Legislation Factsheets

Acas World Cup Guide
30 May 2006
Acas has, this morning, published a really useful set of FAQs,
dealing with both employers' and employees' questions about
'sickies', pub lunches and similar issues for World Cup devotees.
View Acas World Cup Guide FAQs

No Response Form - No Costs
30 May 2006
The EAT has handed down a decision considering whether it is
possible to award costs against a Respondent who fails to submit a
Response Form.
It held that a tribunal's jurisdiction to award costs under the
rules, when an employer fails to enter a Response, is limited to
costs caused or incurred in dealing with one of the express
matters set out in rule 9 (essentially making an application for
review of a default judgment). The EAT's reasoning was heavily
based on the fact that there is no obligation on an employer to
enter a Response, thus an employer is not technically in breach of
any rule if it fails to do so.
Accordingly, the EAT upheld the tribunal's decision on review to
overturn the making of a £5,500 costs order in favour of a
Claimant where the Respondent had not entered a Response.
Sutton v The Ranch Ltd
BAILII Judgment

BNP / Racial Discrimination
25 May 2006
The Court of Appeal has, this morning, overturned the EAT's
controversial decision in Redfearn v Serco.
Serco dismissed Mr Redfearn, a BNP local councillor, following
complains by the union that its (predominantly Asian) members
objected to working with him. It was common ground that, whilst he
was an active member of a political party with unpleasant racial
views, those views had not affected the way he conducted himself
at work. However, Serco was concerned (following some bad
publicity) that employees and clients would be worried about them
employing an active BNP local councillor.
Mr Redfearn, who lacked the qualifying period to claim unfair
dismissal, brought a claim of race discrimination.
Overturning the EAT, the Court of Appeal held that his complaint
did not fall within the Race Relations Act 1976. It was wrong to
say that he had been dismissed 'on racial grounds', simply because
race issues had been in the employer's mind when deciding to
dismiss, and that the decision could be said to be referable to
race.
To the contrary, Mummery LJ held that to allow Mr Redfearn's claim
of direct discrimination to succeed would "cover cases that would
produce consequences at odds with the legislative aim" and
"turn...the policy of race relations legislation upside down... Mr
Redfearn was no more dismissed 'on racial grounds' than an
employee who is dismissed for racially abusing his employer, a
fellow employee or a valued customer."
Mr Redfearn's case of race discrimination accordingly fails.
Serco Ltd v Redfearn
BAILII Judgment

Strike Outs
25 May 2006
The Court of Appeal has, this morning, handed down a decision
reinforcing the extreme nature of a strike-out order and
emphasising how infrequently they should be made.
In Blockbuster Entertainmen v James, the Claimant:
* in breach of a tribunal order, failed to provide adequate
further particulars of his claims
* in breach of another tribunal order, refused to allow the
Respondent to photocopy his disclosure documents, and attended the
tribunal on day one of a six day hearing with previously unseen
documents (including an undisclosed tape recording of an important
conversation)
* in breach of yet another tribunal order, refused to sign his
witness statement, and attended on the morning of the hearing
having made changes without notice to the employer (albeit the
changes seem to have been minor).
The Court of Appeal upheld the EAT's decision, overturning the
employment tribunal's decision to strike out the Claimant's case.
Whilst the reasons are largely fact-specific, Sedley LJ gave the
following guidance:
* the first object of any system of justice is to get triable
cases tried. The courts are open to the difficult, as well as to
the compliant. It does not necessarily matter if the litigant is
difficult, querulous and uncooperative (para. 18)
* it is undesirable for a strike-out application to be made (or
granted) on the first day of a six day hearing. If non-compliance
is serious enough to warrant a strike-out application, this ought
to be clear before the trial begins (paras. 19 and 21)
* it is not satisfactory for a tribunal to simply record that a
strike out is "the only proportionate and fair course to take".
The tribunal's reasons should spell out why a strike-out is the
only proportionate and fair course to take (para 20). Although
Sedley LJ dos not expessly say this, it would seem desirable for a
tribunal to expressly consider other sanctions (such as refusing
to admit evidence) and explain why they are insufficient.
Blockbuster Entertainmen v James
BAILII Judgment
 
Weekly Law Reports Cases

 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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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