ABG Employment Newsletter – January 2011

Consultation on Employment Tribunal Reform

The Government have issued a consultation document, Resolving Workplace Disputes, setting out a number of proposals for reforms to the employment tribunal system. Many of these are aimed at encouraging early resolution of disputes, speeding up the tribunal system, reducing the cost to taxpayers and boosting economic growth.

Specific proposals include:-

• Raising the qualifying period for unfair dismissal claims to 2 years.
• Requiring parties to pay fees in cases, including charging claimants a fee for lodging a tribunal claim.
• Compulsory pre-claim conciliation through ACAS for a period of up to a month before a tribunal claim can be submitted.
• Increasing the limit on costs awards from £10,000 to £20,000.

Introducing automatic financial penalties or fines up to £5,000 for employers found to have breached employment rights.

• Reviewing the formula for calculating compensation awards and redundancy payment limits.
• Encouraging settlements by requiring claimants to provide a preliminary schedule of loss when lodging a claim and support for Calderbank style settlement offers whereby either party can make a formal settlement offer backed up by penalties where a reasonable offer is refused.

Misuse of Confidential Information by Employees

In the case of Brandeaux Advisers (UK) Ltd -v- Chadwick an employee who was in dispute with her employer over a number of matters decided to send large amounts of her employers’ confidential information to her private email address. The employers discovered this and after a disciplinary hearing the employee was summarily dismissed for gross misconduct. An internal appeal was rejected.

The employers then brought High Court proceedings for an injunction restraining the employee from using the information and an order for delivery up. The High Court upheld the employers’ claim and in so doing ruled that they had been justified in summarily dismissing the employee even though at the time the employers themselves were in breach of contract.

The employers also tried to claim repayment of the salary they had paid to the employee between the date when they argued, she would have been dismissed if she had reported her own wrongdoing and her actual date of dismissal. However, this claim was rejected as the employee had a continuing right to be paid until she was dismissed.

Victimisation

In the case of Martin -v- Devonshire Solicitors the EAT has ruled that the employers were not guilty of unlawful victimisation of the employee when they dismissed her after she had raised multiple false grievances alleging discrimination.

The EAT pointed out that there can be cases where an employer has dismissed an employee who has made a complaint of discrimination, but where the employer can say as a matter of common sense that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. This can be the case where the manner in which the complaint is brought is particularly objectionable, e.g. where an employee complains of discrimination but does so in terms of violent racial abuse of the manager alleged to be responsible. In such a case it is not unlawful victimisation where the employer takes action, not because the employee complained of discrimination, but because of the way in which she did it.

So in this case there was no victimisation because of the separable features of the complaints which led to the employers’ decision to dismiss. These included their serious nature, the number of complaints made, the employee’s failure to accept they were as a result of her mental illness, and the time and internal resources taken up dealing with them.

Redundancy and Alternative Employment

The EAT has confirmed that when deciding which potentially redundant employee to appoint to an alternative vacancy, it is fair for the employer to apply subjective as well as objective criteria.

In this case, Morgan -v- The Welsh Rugby Union, Mr Morgan’s post was declared redundant as a result of a business reorganisation. He was one of 3 candidates interviewed for a new post created as a result of the restructuring.

The interview panel considered that he was capable of doing the job but decided to appoint another candidate who impressed them more during interview. Mr Morgan then brought a claim for unfair dismissal claiming that his experience and qualifications were better than the successful candidate.

His claim was rejected by the Employment Tribunal on the grounds that when deciding which potentially redundant employee should be appointed to an alternative vacancy an employer is entitled to undertake a competitive interview process and appoint the candidate it considers to be best for the job even if this is based on its subjective view. This is different from selection for redundancy which, in accordance with the principle established inWilliams -v- Compair Maxam Ltd, should be based on objective criteria.

Age Discrimination

Finally, in the well publicised case brought by Miriam O’Reilly, former BBC Countryfile presenter, an Employment Tribunal has upheld her claim against the BBC for unlawful age discrimination when she was removed from the programme on its move to a primetime Sunday evening slot. On the evidence the Tribunal was satisfied that her age was a significant factor in the BBC’s decision to replace her. Although the BBC’s wish to appeal to younger viewers was a legitimate aim, the Tribunal ruled that the removal of older presenters to pander to the assumed prejudices of viewers was not a proportionate means of achieving that aim.

In addition the Tribunal held that the BBC had victimised Ms O’Reilly by denying her other work after she had made her discrimination allegations. However, her additional claim for sex discrimination was unsuccessful.

As well as Ms O’Reilly being removed from the programme, there were 3 other presenters over the age of 40 who were also removed and the new main presenters are all under the age of 40. The one exception is John Craven, aged 68, but he was considered to be a well known figure whose position was quite different to that of the other presenters. The fact was that the age profile of the Countryfile team became considerably younger when the former team were replaced by the new team.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

ABG Employment Newsletter – August 2010

Christopher Gigg 
[email protected] 
+44 (0)115 934 3310

David Hardstaff
[email protected]
+44 (0)115 934 3323

Kathryn Meir
[email protected]
+44 (0)115 934 3308