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By Michael Scutt, 25/01/2010 10:07 am

There have been some interesting reported cases over the last couple of weeks on a broad range of topics.  For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk.  In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught.  He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing.  Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children.   The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA.  Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector.  For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age.  However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen.  However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector.   In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year.  The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA.   In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section.  In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be. 

 If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

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By Michael Scutt, 29/11/2009 2:05 pm

How not to warn an Employee

A picture is said to be able to say a thousand words – how many does a video say then?  I’ve been trawling through YouTube for videos on employment law to illuminate, educate or, hopefully, just to amuse.  This video – produced by students at the University of the West of England (UWE) – deals with the issue of how to warn an employee for misbehaviour. It’s good at bringing a difficult subject to life. However, when I first watched it I thought it might not have had education as its main purpose …

 Click on the link below to watch it.

How not to warn an employee

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By Michael Scutt, 26/11/2009 2:47 pm

As Annabel Kaye of Irenicom points out in her very useful article on the subject on the The Grapevine online magazine the concept of reasonable belief crops up throughout employment law – particularly in dismissals.  In the case of  Taylor v Alidair CA 1978 ICR 445, CA Lord Denning got to the nub of the matter with his customary succinctness;

“Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent”

Annabel’s article deals with how the employer can demonstrate reasonable belief and is well worth a read.  The key issue is that an employer mustn’t act hastily, but after having carried out a thorough and fair investigation into the allegation.

If you need advice on this subject please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

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By Michael Scutt, 20/10/2009 11:23 am

In a bit of a departure from normal practice here I am uploading a copy of a presentation I gave at the City Business Library today. It may be a bit cryptic if you weren’t there to hear it and please contact me if you require further assistance or explanation.  You can find it at my Slideshare site, which is here;

http://www.slideshare.net/michaelscutt

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By michaelscutt, 20/04/2009 9:00 am

I have just stumbled upon a blog called “Employment Tribunal Claims” (thanks to Usefully Employed for bringing it to my attention) which provides a succinct explanation of the new rules.  I recommend everyone to read it and wish I had come upon it sooner.  Here is the link:  http://etclaims.co.uk/  

(Do note the date, if in doubt)

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By michaelscutt, 06/04/2009 9:41 am

For T.S Eliot, April was the cruellest month.  For employment lawyers it can be the busiest because of the plethora of new legislation and statutory instruments being introduced.  This year is no different and today sees The Employment Act 2008  come into force, replacing the discredited Employment Act 2002 (Dispute Resolution) Regulations 2004.  In The Wasteland, TS Eliot wrote “what are the roots that clutch, what branches grow out of this stony rubbish?”.  Admittedly Eliot was talking about the human condition and the moral and spiritual bankruptcy of modern society, rather than the 2004 regulations, but there is even so great  resonance in those words for employment lawyers. Few people have had anything good to say about the rules and today they are abolished, replaced by a set of rules that are much less rigid but will give rise to other problems in the future.

The main change in the new regulations is that an ACAS Code of Practice has been introduced and it has statutory force. It is brief, only ten pages long, but it sweeps the old system aside.  The Code is supplemented by an ACAS Guidance booklet of approximately 80 pages long and which is advisory rather than legally binding. The main changes are these;

1. It replaces the old system of extensions of time for issuing proceedings if disciplinary processes are still ongoing, or where a grievance has been raised.  There is no longer a 28 day stay on proceedings before an ET being issued after the grievance has been raised. Now ET proceedings can be issued even if a grievance hasn’t been issued.

2. There will no longer be an automatically unfair dismissal where there has been a failure (any failure) to follow the rules.  There will be no consequential 10 – 50% increase/decrease in the amount of compensation following failure by one party to abide by the rules.  Instead an ET will have a discretion, where it is just and equitable to do so,  to increase/reduce an award of compensation by up to 25% where (1) a relevant code of practice applies, and (2) there was a failure to follow the code and (3) that failure was unreasonable.  In my view although this is more flexible than the old rules, it will lead to uncertainty because different ETs will take different views on what constitutes an unreasonable failure.

3.  The “modified” procedures in both disciplinary and grievance procedures is swept away, meaning there is no duty on an employer to hold these procedures for ex-employees.  This is welcome.

4. The new rules do not apply to redundancy processes and it is debatable whether they apply to ill-health/incapacity dismissals.   Also they don’t apply to dismissals upon expiry of fixed term contracts. In my view ETs will probably look to the Code of Practice when considering the fairness of the procedure used by employers in these situations, so it would be a rash employer that decided to ignore them in redundancy/expiry of fixed term and ill health situations. In the case of collective redundancies (ie more than 20 persons selected in a three month period) employers are required to consult with employees anyway, but the issue may arise in small scale redundancies of less than 20 people.

In judging whether an employer has acted unreasonably, an ET will have regard to the size and resources of the employer.  In other words, more will be expected of bigger employers than smaller outfits when considering if they have acted reasonably.

However, it is not goodbye to the old rules just yet.  A complex system of transitional provisions exist and close regard has to be had to them when deciding whether the old rules apply at the moment, or the new.  Basically, if the “trigger” event (being the disciplinary issue or grievance) occurred before the 6th April then the old rules will apply.  If the trigger event occurs on or after the 6th then the new rules apply.  Where matters get complicated is where (in grievance cases) the act complained of started before the 6th but continues after that date.  If that situation applies to you, seek legal advice.

I’ll deal with more aspects of the new rules in later posts.  In the meantime if you have any queries please do not hesitate to contact me on 0207 464 8433 or email at michaelscutt@dalelangley.co.uk

A slightly different version of this post will appear in the Docklands and Peninsula newspapers week commencing April 14th