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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 michaelscutt, 12/08/2009 10:44 am

The FT is reporting today that the FSA has finally produced its remuneration code on how bankers should be paid.  I have only seen the headlines and brief summary of the proposals, but it seems that the FSA has shied away from being too prescriptive for fear of driving bankers abroad to less tightly regulated markets.  Expect a deluge of criticism to fall on top of the FSA, whose days are numbered if the Tories return to power at the next election.

The draft code stipulated that two-thirds of each bonus should be deferred and that individuals should be rewarded on the basis of the firm overall rather than just the individual or the business unit.  Apparently that isn’ t in the code to be published today. I posted last week on bonuses and clawbacks – click here to read it.

Undoubtedly the FSA will be criticised for not taking a more rigorous line, yet it is in a situation where it is damned if it does and damned if it doesn’t.  If they had produced a very stringent code the institutions would accuse the FSA of destroying London’s competitiveness as an international financial centre.  Other international regulators are not taking a hard line so why should the FSA?  In my view it would be a bad move to have a government body dictating pay – like the failed prices and incomes policies of the 1970s – and ask yourself this: if the state starts dictating what bankers can be paid, who will be next up for regulation?