UK update - Type 2 diabetes controlled by diet is not automatically a disability

This post was written by David Ashmore and Amy Treppass.

In Metroline Travel v Stoute, the Employment Appeal Tribunal (“EAT”) decided that employees with type 2 diabetes controlled by diet (rather than medication) are not automatically protected by disability discrimination legislation.

The Facts

Mr Stoute was employed by Metroline and worked for them as a bus driver for 21 years. He suffered from type 2 diabetes. To keep his blood sugar levels low, he followed a low sugar diabetic diet which mainly consisted of avoiding soft drinks.

On 11 March 2013, he arrived late at work and was dismissed for gross misconduct. He claimed that his late arrival at work was the result of diarrhoea, which was a consequence of his diabetes.

Mr Stoute brought claims against Metroline of unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments. A preliminary hearing took place to determine if type 2 diabetes meant that he was disabled under the Equality Act 2010.

The Employment Tribunal (“ET”) referred to a medical report where it was noted that for two periods of time, Mr Stoute was not taking medication which reduces blood sugar levels, but was following a controlled diet.

In rendering its decision, the ET had regard to guidance from the Equality and Human Rights Commission on the definition of disability. The guidance provides that if a person suffers from an impairment and is undergoing treatment or correction for that impairment, then the impairment is to be treated as having a substantial adverse effect if, without the treatment or correction, the impairment was likely to have that effect.

The ET decided that a controlled diet amounted to treatment or correction of an impairment, and that Mr Stoute was disabled within the meaning of the Equality Act as a consequence of his type 2 diabetes.

The EAT’s decision

The EAT found that the ET had made an error of law in concluding that anyone with type 2 diabetes was automatically disabled under the Equality Act. In the EAT’s view, abstention from sugary drinks did not amount to medical treatment that had to be ignored when determining the issue of disability. The EAT also pointed out that a coping or avoidance strategy (such as a controlled diet) might result in the effects of an impairment being reduced to the extent they are no longer substantial, with the outcome that an individual is not disabled under the Equality Act 2010. The EAT also concluded that diabetes controlled by diet does not amount to an impairment or interference with normal day-to-day activities. The EAT allowed the appeal and ordered Mr Stoute to pay the appellant’s fees in full.

What does this decision mean for employers?

This is an interesting and potentially important decision. Type 2 diabetes is by far the most common type, with 90% of approximately 3.1 million diabetics in the UK having type 2 diabetes. This case illustrates the fact that even where a medical condition is clinically well recognised, that in itself is not sufficient for it to be a disability. This case will also likely make it harder for people suffering from nut allergies, lactose intolerances, etc., who manage their conditions by avoiding certain foods/drinks, to claim that they are disabled. Note that the EAT accepted that medicated diabetes sufferers (type 1 or type 2) are regularly considered to be disabled for the purposes of the Equality Act.

Employment Appeal Tribunal gives guidance on what constitutes sufficient knowledge of a disability to give rise to a duty to make reasonable adjustments

In Donelien v Liberata, the Employment Appeal Tribunal (“EAT”) has held that an employer did not have constructive knowledge of an employee’s disability, even though further steps could have been taken to investigate her condition.

Background

Under the Equality Act 2010, employers are obliged to make reasonable adjustments to help disabled employees overcome disadvantages arising from working rules and practices, the physical features of the workplace, and the need for auxiliary aids. However, that duty only arises where an employee is disabled within the meaning of the Equality Act 2010 and the employer knows (i.e., has “actual knowledge”) or could reasonably be expected to know (i.e., has “constructive knowledge”) that the employee is disabled. This case was decided under the Disability Discrimination Act 1995, which was replaced by the Equality Act 2010. However, the legal principles are the same.

Whether an employer has constructive knowledge of an employee’s disability will be determined by an Employment Tribunal looking at all of the facts of the case, including the information known to the employer and the efforts made to investigate the employee’s medical condition and its effect on the employee. This will often involve referring employees to Occupational Health or another medical expert so a report can be prepared. However, in Gallop v Newport City Council, the Court of Appeal held that the employer in that case had constructive knowledge of the employee’s disability, even though the Occupational Health report indicated that the employee was not disabled. An employer must therefore form its own view of whether an employee is disabled, and cannot uncritically rely on an Occupational Health report.

The facts

Ms Donelien was employed by Liberata as a Court Officer. She was dismissed in October 2009 for unsatisfactory attendance, a failure to comply with sickness notification procedures and a failure to work her contractual hours. This followed Ms Donelien being absent from work for 128 days in the last year of her employment for a variety of different reasons, including stress, colds, stomach upsets, a viral infection and high blood pressure.

Liberata had instructed its Occupational Health provider to prepare a report on Ms Donelien’s condition in May 2009. The enquiries put to the provider included (i) whether Ms Donelien suffered from a medical condition which explained her pattern of absences; (ii) whether any such condition impacted her ability to carry out her role; (iii) how long any such condition would be likely to last; (iv) whether any such condition amounted to a disability; and (v) whether any reasonable adjustments were recommended. The Occupational Health report provided general information but did not fully engage with these enquiries. Accordingly, Liberata followed up by telephone and received a more detailed response. However, although the second response stated that Occupational Health did not believe Ms Donelien to be disabled, it was still lacking in detail, including by not explaining the impact of her medical conditions and their likely duration. However, Liberata did not ask for more information again.

Following her dismissal, Ms Donelien brought Employment Tribunal claims, including for disability discrimination for an alleged failure to make reasonable adjustments.

At a preliminary hearing, the Employment Tribunal determined that Ms Donelien was disabled by August 2009 at the latest. In contesting liability for a failure to make reasonable adjustments, Liberata denied having actual or constructive knowledge that Ms Donelien was disabled. The Employment Tribunal agreed with Liberata.

The decision of the EAT

Ms Donelien appealed to the EAT on two grounds:

  1. In reaching its decision, the Employment Tribunal had failed to take account of Gallop v Newport City Council when determining whether Liberata had constructive knowledge of Ms Donelien’s disability. Liberata had unreasonably relied on the Occupational Health report and failed to form its own view of whether Ms Donelien was disabled.
  2. The Employment Tribunal’s decision that Liberata had done what it reasonably could to investigate Ms Donelien’s medical conditions was incorrect, such that Liberata did have constructive knowledge of her disability.

The EAT dismissed both grounds of appeal.

In relation to the first ground of appeal, the EAT, in reviewing the Employment Tribunal’s judgment, decided that the Employment Tribunal had made a determination that Liberata formed its own view that Ms Donelien was not disabled and had not uncritically relied on the Occupational Health report. The EAT noted that Ms Donelien had a variety of apparently unconnected medical complaints, and that it was also difficult for Liberata to draw a distinction between what she could not do and would not do. As such, the Employment Tribunal was entitled to find that Liberata did not have constructive knowledge of Ms Donelien’s disability from the information available to it.

In dismissing the second ground of appeal, the EAT accepted the Employment Tribunal’s finding that Liberata had taken reasonable steps to understand Ms Donelien’s medical position. Clear instructions had been sent to Occupational Health, and Liberata had followed up when the initial response was lacking in detail. Although some employers may have followed up again when the second response still lacked particularity, the test for whether an employer had constructive knowledge is one reasonableness, and Liberata was not required to conduct the perfect investigation.

What does the case mean?

The case is helpful for employers in that it confirms that Employment Tribunals may give them some latitude in determining whether they have constructive knowledge of an employee’s disability. However, care should be taken in seeking to rely on this case as grounds for limiting investigations into an employee’s state of health. The decision of the Employment Tribunal was highly fact-sensitive, and another Employment Tribunal may have taken a different view.

Accordingly, it remains best practice to conduct as thorough an investigation as possible into the medical reasons for employee absence, and to follow up with Occupational Health providers and other medical professionals if their reports are lacking in detail.

Early Conciliation

As part of the government’s aim to reduce employment litigation, a mandatory Tribunal pre-claim conciliation process is about to be introduced.

This early conciliation process was introduced on a voluntary basis on the 6th April 2014, and will be mandatory for most Employment Tribunal claims from the 6th May 2014.

What is early conciliation?

Early conciliation requires employees to submit an early conciliation form (EC form) to ACAS before bringing a claim. The EC form sets out the employee’s details and the details of their employer; however no information is required about the nature of their claim.

Once the EC form has been submitted and the prospective claimant has confirmed that they wish to undertake early conciliation (the employee does not have to participate any further in the process), ACAS will appoint a conciliator to the case. The conciliator will contact the employer, and ascertain whether they wish to participate in early conciliation (participation on the employer’s part is not mandatory either). Where both parties consent to undertake early conciliation, the conciliator will have one month to promote a settlement between the parties. If the conciliator thinks there is a reasonable prospect of achieving settlement ACAS can, with the consent of both sides, extend discussions for a further 14 days beyond the end of this one month period.

Continue Reading...

Costs in Tribunals - what employers should know

Costs awards in Employment Tribunals do not ‘follow the event’: a losing party will not automatically find themselves having to pay the other party’s costs of the litigation. However, the Tribunal has discretion to order costs where a party, or their representative, has acted "vexatiously, abusively, disruptively, or otherwise unreasonably" in the bringing or conducting of the proceedings, or the claim had "no reasonable prospect of success" (Rule 77 of the Employment Tribunals Rules of Procedure 2013).

We take a look at some recent cases on this issue – some will reassure employers, but some may make them wonder if pursuing costs against an unreasonable Claimant is worth it...

Continue Reading...

Rewriting the law - UK collective redundancy consultation obligations change dramatically

Laura Juillet and Thomas McLaughlin contributed to the content of this post.

Employers are required to collectively consult when proposing to dismiss 20 or more employees at one establishment as redundant within a period of 90 days or less (section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).Defining what is meant by “at one establishment” for this purpose has always been tricky, and has led to significant debate. The issue is of particular importance to employers with multiple sites, such as retailers.

But now it seems that such debate has been rendered obsolete, with the Employment Appeal Tribunal (the “EAT”) holding that the words “at one establishment” should be deleted from section 188. Although this makes the law easier to apply, employers should be aware that the price of such clarity is that they are now more likely to be subject to collective consultation obligations when making widespread redundancies.

Continue Reading...

UK Employment Tribunal fees - not just for employees!

The draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (the “Order”) has just been published by Parliament, giving us an insight into how the new Employment Tribunal fee structure will operate when it comes into force, expected to be this summer. 

Continue Reading...

Introduction of Fees in Employment Tribunals - results of consultation published

This post was written by Helena Tiernay.

Earlier this year, as part of its Employment Law Review, the Government conducted a public consultation on its proposal to introduce fees in the Employment Tribunals. The Ministry of Justice has now published the results of that consultation, and has indicated an intention to introduce fees in the summer of 2013.

This is a significant development in the life of Employment Tribunals, further watering down the original principle that the Tribunals would be an informal and accessible forum for resolving industrial disputes.

Continue Reading...

Government announces radical reform to UK employment laws

The Government has today announced what it describes as “the most radical reform to the employment law system for decades”. In a speech to EEF, the UK manufacturers’ organisation, Vince Cable outlined the results of the Government’s recent consultation on Resolving Workplace Disputes and the recent Red Tape Challenge Review of employment law. 

The proposals announced by Vince Cable include the following:

  • Merge, scrap or simplify 70 of the 159 employment regulations examined in the Red Tape Challenge (this includes consolidation of 17 national minimum wage regulations)
  • Publish calls for evidence on proposals to simplify TUPE and to reduce the minimum consultation period for proposed collective redundancies involving 100 or more employees, from 90 days to 60, 45 or 30 days (see links below to these consultation papers which were issued today and which will close on 31 January 2012)
  • Publish a call for evidence on simplifying dismissal processes, seeking views on two proposals: whether to introduce compensated no fault dismissals for micro firms with fewer than 10 employees; and how to simplify the existing dismissal process, potentially changing the Acas Code, or to provide supplementary guidance for small businesses.
  • Remove protection for any whistleblower making a disclosure about the worker’s own contract (to counter the EAT’s decision in Parkins v Sodexho Ltd [2002] IRLR 109
  • Create a universally portable CRB check that can be viewed by employers instantly online from early 2013
  • Consult on the introduction of fees for bringing a claim in the Employment Tribunal, seeking views on two options: a system involving an initial fee to lodge a claim and a second fee to take that claim to hearing; or a system involving a £30,000 threshold whereby anyone seeking an award above that figure will pay more to bring a claim
  • Consult on streamlining the current regulatory regime for the recruitment sector.

In addition, as part of the Government’s response to its consultation to the Resolving Workplace Disputes, the Government has said that it is committed to:

  • Increasing the qualifying period for unfair dismissal from one to two years from April 2012
  • Requiring all Employment Tribunal claims to be lodged with Acas and to be offered mediation before going to Tribunal
  • Modifying the formulae for up-rating Tribunal awards and redundancy payments to save business an estimated £5.4 million (net) a year
  • Giving Employment Judges discretion to levy a financial penalty, payable to the Exchequer, against employers for breach of employment rights
  • Consulting on whether employers should be allowed to have “protected conversations” with staff without the existence of a formal dispute and without such conversations capable of being used in evidence in a future Tribunal claim
  • Consulting on the simplification of compromise agreements, such as doing away with long lists of causes of action. Other proposals include introducing a standard text, amending s.146 Equality Act to provide reassurance that compromise agreements can safely be used to compromise discrimination claims, and renaming them “settlement agreements”
  • Consulting on developing a “rapid resolution” scheme which will offer a quicker and cheaper alternative to determination of straightforward, low value claims at an Employment Tribunal
  • Carrying out a review of Employment Tribunal rules, to be led by Mr Justice Underhill, who steps down at the end of this year from his Presidency of the Employment Appeal Tribunal.

Much of the detail of these proposals is yet to be revealed and we now have to wait for a number of consultations to be completed before we know more. It looks like 2012 will be an important year for employment law reform so watch this space!

Please click on the following links for more information:

Government Press Release:

http://nds.coi.gov.uk/content/detail.aspx?ReleaseID=422195&NewsAreaID=2&HUserID=895,779,885,848,782,879,710,705,765,674,677,767,684,762,718,674,708,683,706,718,674&ClientID=-1

Call for evidence on TUPE regulations (closing 31 January 2012)

http://www.bis.gov.uk/Consultations/call-for-evidence-effectiveness-of-current-tupe-regulations?cat=open

Call for evidence on collective redundancies (closing 31 January 2012)

http://www.bis.gov.uk/Consultations/call-for-evidence-collective-redundancy?cat=open

Government Response to Resolving Workplace Disputes

http://www.bis.gov.uk/Consultations/resolving-workplace-disputes?cat=closedwithresponse

Supreme Court grants teacher working in Germany the right to claim unfair dismissal in the UK

This post was written by Tom Remington.

In Duncombe and others v Secretary of State for Children, Schools and Families [No.2], the UK Supreme Court has decided that a teacher employed by the Secretary of State for Children, Schools and Families to work in a European School in Germany enjoyed the protection against unfair dismissal contained in the Employment Rights Act 1996 (the “ERA”), such that he was entitled to pursue a claim in the English Employment Tribunal in connection with the termination of his employment. The Supreme Court found that Mr Duncombe’s employment had a sufficiently close connection with Great Britain, more so than with any other jurisdiction, to justify this conclusion.

In its decision, the Supreme Court examined the principles already set out by the House of Lords in the landmark 2006 case of Lawson v Serco Ltd

This is an important decision for employers based in the United Kingdom who engage staff to work abroad and highlights the need to give careful consideration to the employment law rights that any such employees might have.

What happened in this case?

Mr Duncombe was employed on a series of fixed-term contracts to work in a European School in Germany by the predecessor to the Department for Children, Schools and Families. After nine years’ employment and on the expiry of Mr Duncombe’s final fixed-term contract, his employment was terminated (as required by the relevant EC Regulations governing the administration of the European Schools under the so-called “nine-year rule”) and he subsequently brought Employment Tribunal claims for wrongful and unfair dismissal. 

The arguments in Mr Duncombe’s case centred around the territorial scope of the ERA and the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The case went all the way to the Supreme Court. The Supreme Court has already ruled on 30 March this year on a different aspect of the case, finding that the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 did not operate to convert Mr Duncombe’s fixed-term contract into a permanent contract after he had been continuously employed for nine years on a series of successive fixed-term contracts (on the grounds that the nine-year rule objectively justified the use of a final fixed-term contract), thereby defeating Mr Duncombe’s wrongful dismissal claim. The Supreme Court has now also ruled on Mr Duncombe’s claim that he is protected against unfair dismissal under the ERA, despite working exclusively in Germany.

In reaching its decision, the Supreme Court relied on the decision of the House of Lords in Lawson v Serco Ltd. In that case, it was held that there are three categories of employees who are entitled to claim unfair dismissal protection under the ERA, as follows:

  1. employees who work in Great Britain;
  2. peripatetic employees who are based in Great Britain (e.g. pilots and travelling sales staff); and
  3. expatriate employees in ‘exceptional circumstances’ such that, despite their workplace being abroad, other relevant factors are sufficiently powerful to give the employment relationship a closer connection with Great Britain than any other country’s system of law (e.g. a foreign correspondent who is posted abroad).

The Supreme Court held that MrDuncombefell within the third category in Lawson v Serco Ltd, basing its decision on the following key factors:

  • his employer was based in Great Britain;
  • as well as being based in Great Britain, the employer was the Government of the United Kingdom, giving it the closest connection with Great Britain that any employer could have;
  • Mr Duncombe’s employment was governed by an English law contract;
  • Mr Duncombe was employed in an international enclave which had no particular connection with the country in which he happened to be situated (Germany);
  • Mr Duncombe did not pay local taxes; and 
  • it would be anomalous if a teacher who had been employed by the British Government to work in the European School in England enjoyed greater protection than a teacher employed by the British Government to work in the same sort of school in another country.

The Supreme Court therefore remitted Mr Duncombe’s claim of unfair dismissal to an Employment Tribunal for it to reach a decision on the merits of his case.

What the Supreme Court’s decision means for employers.

On the facts, it is perhaps not surprising that the Supreme Court decided that Mr Duncombe’s employment had a sufficiently close connection with Great Britain to entitle him to unfair dismissal protection under the ERA. However, the case does highlight the English courts’ willingness to give employees who work outside of Great Britain unfair dismissal protection (and potentially other domestic rights) where their employment has a demonstrably close connection with Great Britain.

English employers would be wise to consider carefully the legal rights that their expatriate employees may have both before engaging them and, in particular, when considering whether to terminate their employment.

On a separate note, it is worth pointing out that the Supreme Court did not have to deal with the particularly interesting point which was thrown up by the lower courts in this case concerning the extension of the territorial scope of UK employment law to give effect to directly effective EU rights. The Employment Tribunal and the EAT, applying their view of the principles in Lawson v Serco Ltd, both decided that the Mr Duncombe was not entitled to bring a claim for unfair dismissal, which would have meant that his remedy would have been limited to contractual notice rights. However, applying the principle in Bleuse v MBT Transport Ltd [2008], the Court of Appeal found it necessary to extend the remedy of unfair dismissal to Mr Duncombe in order to give him an effective remedy for breach of certain specific rights under EU law (namely those derived from the EU Fixed-term Working Directive). This decision of the Court of Appeal effectively gives employees working outside the UK, but in the EU, a "back door" means of pursuing an unfair dismissal claim in the Employment Tribunal in circumstances where they do not fit within the Lawson v Serco Ltd categories but where the Court considers that to be necessary to give them an effective remedy for a failure to give effect to an EU derived right (such as rights under the Fixed-term Working Directive). There was no need for the Supreme Court to consider the Bleuse issue as it had already decided (in its first decision) that Mr Duncombe’s fixed term contract did not convert to a permanent contract under the Fixed-term Employees Regulations (so that no effective remedy was therefore required) and because in this second decision of the Supreme Court, it decided that Mr Duncombe fell within one of the Lawson v Serco Ltd categories and was therefore entitled to bring a claim for unfair dismissal under the ERA. The Court of Appeal's decision on the Bleuse issue therefore remains good law and UK employers need to be especially careful when considering the rights of employees who work outside the UK but in an EU Member State, particularly where their contracts are governed by English law.

Effective Date of Termination - Employer's letters of dismissal

The UK's Supreme Court in Gisda Cyf v Barratt has ruled that where an employer communicates dismissal without notice by way of a letter, the effective date of termination (‘EDT’) is when the employee reads the letter or has had a reasonable opportunity of reading it, as opposed to when it is posted. This will be the case unless the employee has deliberately failed to open the letter or gone away in order to avoid reading it. This is in contrast with the ‘normal’ contractual position and reaffirms the view that employment law is a special case, recognising the more vulnerable position of employees.

What happened is this case?

Mrs Barratt, the respondent, was suspended from her employment because of allegations that she had behaved inappropriately at a private party. In her disciplinary hearing shortly thereafter she was told to expect to receive a letter on 30 November informing her of the outcome. Mrs Barratt then went away on 30 November as her sister had just given birth. Later that day her boyfriend’s son signed for the letter from Mrs Barratt’s employers. Mrs Barratt had left no instructions for it to be opened or read. Mrs Barratt arrived home late on 3 December and didn’t actually open the letter until 4 December, at which point she discovered she had been summarily dismissed.

The EDT is the date on which an employee’s continuous employment has ended. Establishing the EDT is important because a claim for unfair dismissal must be presented to the Tribunal before the end of three months beginning with the EDT. Mrs Barratt presented a claim for unfair dismissal and sex discrimination on 2 March 2007. If the EDT was when Mrs Barratt’s employers posted the letter, this would mean her claim was out of time because she would only have until the end of February to bring her claim; if it was when she actually read the letter, then her complaint was lodged within time because the time limit was 3 months from when she read the letter i.e. 3 March 2007.

The Employment Tribunal held that both claims were brought within time’ the EDT was when Mrs Barratt opened the letter. This was appealed all the way to the Supreme Court. The employer argued that the Tribunal should have adopted more traditional contractual principles i.e. that termination occurs when communication could be expected ‘in the normal course of things’ to come to the party’s attention. However, the Supreme Court said that employment law is a special case in which employees are in a ‘more vulnerable position than employers’. The rules on time limits should be interpreted in a way favourable to the employee. 

The question to be considered was whether the EDT was determined by the existence of the opportunity to open the letter, or was it the date on which the employee had a “reasonable opportunity” to find out what the letter contained? The Court decided that it was the latter: the proper consideration should be whether the employee had a reasonable opportunity to find out what the letter contained. 

In assessing whether Mrs Barratt had a reasonable opportunity to discover the contents of the letter, the Court placed great emphasis on her behaviour. The Court reasoned that even though the letter had been signed for and Mrs Barratt’s boyfriend’s son could have opened the letter and told Mrs Barratt of its contents, it was not unreasonable for her to fail to leave instructions to do so. It was also considered perfectly reasonable that Mrs Barratt should want to visit her sister, who had just given birth. In addition the Court considered it reasonable that Mrs Barratt would want to absorb the contents of the letter alone, given its contents, rather than give instructions for someone else to read the letter and tell her of the contents. 

One key caveat to the ruling is that the EDT being when the employee opens the letter of termination will not apply where the employee deliberately avoids reading the letter or goes away so as to avoid reading it.

What does this case mean for employers?

This case highlights that in assessing when the EDT in the context of employment rights legislation, employers must be ‘mindful of the human dimension’. Employers looking to terminate an employee by way of letter, rather than say a face to face meeting, must ensure that they consider what can be reasonably expected of an employee facing the prospect of dismissal. 

The Tribunals will generally treat the employee favourably due to their more vulnerable position. In which case, unless an employee is shown to have deliberately avoided reading a letter, the EDT will be when the employee reads the letter or has had a reasonable opportunity to discover its contents. It would appear that the employee would have to make a concerted effort not to read such a letter for this rule to be displaced.

April changes to the Tribunal Rules of Procedure

Regulations to amend the 2004 Employment Tribunal Rules of Procedure have been laid before Parliament and will come into effect on 6th April 2009. These changes will be relevant to all practitioners and HR managers involved in Tribunal proceedings – take note in particular of the changes regarding making a request to extend time for filing a Response.   

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008

Continue Reading...

Employment Tribunal respondents' names and addresses to be published

 

The Deputy Information Commissioner has recently ordered the Department for Business, Enterprise and Regulatory Reform (BERR) to disclose names and addresses of the respondents to all Employment Tribunal claims lodged since October 2004. The Information Commissioner considers that, on balance, the public interest was best served by disclosing the information. This effect of this order is that anyone can now make a similar application under the Freedom of Information Act and have access to all respondents’ names and addresses in Tribunal proceedings. Whether in the “information age”, this will have any adverse impact on businesses, as was argued by BERR, remains to be seen. 

Continue Reading...

Equal Pay - the relationship between grievances and Employment Tribunal claims

The Scottish Court of Session in the case of Cannop & Others –v- The Highland Council has confirmed that where the employee’s Employment Tribunal claim follows on from a grievance previously communicated, there does need to be a necessary relationship between the grievance and the complaint pleaded in the ET1 Tribunal claim form, so that the grievance underlying the ET1 is essentially the same as the grievance earlier communicated. In respect equal pay claims, the Court declined to comment on the Employment Appeal Tribunal’s decision that the relevant grievance must refer to the comparators which are subsequently cited in the ET1.

Continue Reading...

ACAS publishes draft Code of Practice for consultation

On 2 May 2008, ACAS published a new draft Code of practice on discipline and grievances for public consultation. The Code has been revised to take into account the changes proposed to be made to workplace dispute resolution by the Employment Bill, currently before Parliament, and in particular the forthcoming abolition of the statutory dispute resolution procedures.

Consultation Paper and draft Code of Practice

Continue Reading...