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August 2009

A warm hello to all of you who are not on your holidays (and a welcome back to those of you who will return to this newsletter after a no doubt well deserved holiday).

The good news this week is that Germany and France are now officially out of recession. I am sure that this is welcome news for all of our clients and subscribers who rely on trade from Central Europe. The big question is how long will it take for the UK to attain growth once more? Given that our economy was based heavily on property and finance (the French and German economies did not experience a property bubble and their prices are not usually linked to the economy in the way that property seems to be in the UK; plus, their banking sector was not overexposed to the credit derivatives market) it may take a while longer. BUT, hang on in there as banks are starting to lend again (or so we're told) and there are certainly signs of a recovery. The banks have written off much of their bad debt and the more soundly based of them should be back in the black in the next six months.

In our newsletter this month we see that, yet again, the Court of Appeal has sanctioned the use of legal representation in disciplinary hearings when those hearings have an immediate effect on the future career prospects of a professional (see R v Governors of X School). Our local and public authority clients must closely examine their procedures and take advice on these issues if they arise or any decision made may be overturned on judicial review or on an application under the Human Rights Act. EU law has a much stronger effect on public authorities and EU Directives are enforceable on bodies that represent the governments of EU states.

The retirement age issue is not going away; in fact, rumour has it that the Government has brought forward the planned consultation in order to do away with the state retirement age notwithstanding that it is lawful in the context of UK and European law. Personally, I believe that the public policy defence to the current retirement age may no longer be sustainable given the demand on the state of an ageing population and the Government is protecting itself from both future legal challenges and a vast pension/welfare deficit.

Enjoy the rest of the summer and we will be back with another newsletter in September.

We'll keep you up to date with any important developments between newsletters on our blog and if you have enquiries about the items featured or require any further information then don't hesitate to contact us on 0151 239 1000, freephone 08000 320974 or by e-mail to enquiries@clbemployment.com.

Regards

Martin Malone


This month's news:

1. Right to legal representation at internal disciplinary hearings

2. When does the law say a fit person is disabled?

3. Official review of default retirement age

4. Consultation and TUPE

5. Whistleblowers' allegations to be sent by tribunals to regulatory bodies?

6. Authors and poets last month, now will MPs need a criminal record check to visit schools?

7. Discrimination and job applications

8. ...and finally



Employment Solutions

august 2009


Although we are now well into the holiday season, you can be assured that all CLB Business Solutions services (Employment, Debt, Disputes and Payroll) remain fully resourced and at your disposal. If you've tried Employment Solutions and you're interested in our comprehensive range of complementary legal and payroll services, call our sales team now FREE on 08000 320 974 or contact sales manager Laura McDonald direct on 07794 552 896 or by email to lauramcdonald@clbemployment.com.

Don't forget to check our blog to keep right up to speed with employment law news that's relevant to you and your business.


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July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
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May 2008
April 2008




1. Right to legal representation at internal disciplinary hearings

The general rule is that an employee who is called to a disciplinary meeting has the right to be accompanied by a fellow worker, a trade union representative or an official employed by a trade union. 

As explained by the April 2009 ACAS Code of Practice, the companion "should be allowed to address the hearing to put and sum up the worker's case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case".

But what if the employee wants a lawyer to attend?  Generally the answer is "no way", unless of course the employer voluntarily consents.  But for employees of public authorities, there are now some circumstances in which the employee can insist on being allowed to have legal representation.  This will be so if the employee is accused of an offence which is of "such gravity" that, if proven, it will effectively block him or her from continuing their chosen career.

This significant development follows from the Court of Appeal's ruling on 23rd July 2009 in the case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust.

In August 2007, shortly after starting work for Milton Keynes Hospital NHS Trust, Dr Kulkarni was accused of improperly touching a patient. The patient had complained that he inappropriately examined her by placing a stethoscope under her knickers without her permission. He was suspended with immediate effect, on full pay, pending an investigation into the matter.

Dr Kulkarni was not allowed legal representation at the subsequent disciplinary hearing. He appealed to the High Court on the basis that this infringed his Human Rights (ECHR Art 6, right to a fair trial). The High Court rejected his appeal, holding that his Human Rights were adequately protected by his rights to take the matter on to the General Medical Council and/or an employment tribunal. 

Dr Kulkarni appealed to the Court of Appeal and won.

The Court of Appeal's decision was mainly based on the wording of the NHS disciplinary procedure set out in a document called "Department of Health Circular HC90(9)". This of course makes the case important for all doctors and dentists.  However the Court of Appeal went further than that.  It also took the view that refusal to allow Dr Kulkarni legal representation at his disciplinary hearing could infringe his human rights.  This is in line with another recent case, which was not mentioned in the Court of Appeal judgment.  In the other case the High Court held that a school teacher had the right to representation by a lawyer at an internal disciplinary hearing which could lead to his name being added to the POCA list of those not allowed to work with children (R (on app'n of "G") v Governors of "X" School, 18th March 2009).

The importance of these decisions is mainly in relation to public sector employees.  This is because, although the Human Rights Act 1998 does not make the European Convention on Human Rights part of UK domestic law,  it does enable private citizens to enforce convention rights against public authorities through the domestic courts.

In the present case, the Court of Appeal (Lady Smith, with whom the other two Lords Justices agreed) said:

"With respect, I cannot agree with that view [i.e. the view of the High Court as noted above that Dr Kulkarni's Human Rights were adequately protected by his rights to take the matter on to the General Medical Council and/or an employment tribunal]. Certainly a doctor appearing before the GMC has full rights of representation but the process there undertaken cannot be described as 'subsequent control by a judicial body' of the disciplinary proceedings. First of all, the GMC is not a judicial body. Second, it does not conduct an appeal from the disciplinary proceedings by the employer. It decides whether the doctor's fitness to practise is impaired. I entirely accept that consideration of that issue would, in the case of Dr Kulkarni, include deciding whether he had indeed touched his patient improperly as alleged in the disciplinary proceedings. And I also accept that, if the GMC found that he had not, he should be able to obtain employment again within the NHS. But there is no certainty that there will be GMC proceedings. The doctor cannot instigate them".

It is understood that there is likely to be a further appeal to the House of Lords (or rather to the new "Supreme Court for the United Kingdom" as that will take over the judicial  functions of the House of Lords when it opens in October 2009)

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2. When does the law say a fit person is disabled?

Actually the law is not that daft.  But in early 2009 the House of Lords ruled that the definition of a "disabled person" in the Disability Discrimination Act 1995 is wider than had previously been thought.

The Act provides that a person is disabled for its purposes if "he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".  The Act also provides that if the impairment has ceased to have such an effect "it is to be treated as continuing to have that effect if that effect is likely to recur". In other words the DDA caters for the possibility of someone who is currently fit being able to claim protection under it - provided they previously suffered from a qualifying disability and that it is likely to recur.

The House of Lords decision is to the effect that "likely to recur" must be given a wide meaning.  It could be argued that it means "more probable than not" or "more than a 50/50 chance".  The House of Lords has said that would be wrong. Instead, they have decided that the proper meaning of "likely to recur" in this context is simply "could well happen".  One of the Law Lords, Lord Rodger, pointed out that, if the background is one where a doctor sees fit to continue to prescribe treatment, then that demonstrates that a recurrence "could well happen" and should lead an employer to conclude that recurrence is "likely".

In the case in question (SCA Packaging Ltd v Boyle [2009] UKHL 37) a Mrs Boyle was employed by SCA Packaging from 1969.  She had suffered from nodes on her vocal cords which were removed by surgery and did not recur after 1992. In 2000 her line management changed. Managers sought to take down a partition which would expose her to more noise and so require her to talk more loudly. That could cause a recurrence of her problem. She argued that this was a failure to make reasonable adjustments as required by the Disability Discrimination legislation and then, when in 2002 she was made redundant, that it was an act of unlawful victimisation.

All parties accepted that it was possible that the problem might recur.  The question was whether is was likely to recur.  If so, she could make a claim; if not, not.  As can be seen from the above, the House of Lords decided in favour of Mrs Boyle. Baroness Hale held that the previous use of a "more probable than not" test should no longer be followed. Lord Brown considered that it was sufficeint to establish that the condition "could well recur". Lord Hope disapproved of an approach involving percentages of chance, saying that the purposes of the Act are best served by a "broader and less exacting test".

So whether or not Mrs Boyle was in fact fit was not important. What mattered was that her disability was "likely to recur". That meant she was disabled for purposes of the Act and so the case was returned to the original tribunal (in Northern Ireland) for hearing on its merits.

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3. Official review of default retirement age

Before introducing anti-age discrimination rules in 2006 the government announced that it would review in 2011 the provision setting out a "default retirement" age of 65.  As recently as May 2009 the government confirmed its intention to hold the review in 2011. 

Now, a couple of months later, the Government has issued a consultation paper which announces a change of plan "in the light of economic circumstances". It has now decided to bring the review forward to 2010 and says that it has "started the process of engaging with stakeholders and gathering evidence to inform the review". 

The "default retirement age" of 65 is really no such thing. More accurately it is an exemption from the anti-age discrimination rules introduced in 2006 to ensure that subject to specified procedures being followed an employer can require an employee to retire at age 65 or over without thereby being liable for unfair dismissal.

The government appears to be in two minds as to what should be done.

On the one hand its stated long term aim is to remove the exemption entirely.  However the  Observer newspaper reported in March 2009 that the Department for Business, Enterprise and Regulatory Reform (now BIS) wanted to retain the default retirement age and that a government source said that if it was abolished the result would be "industrial tribunal after tribunal" as employers found other excuses to get rid of older workers (the Observer, 8th March 2009 "Cabinet split over right to stay in work after 65").

On the other hand it is worth noting that there are immediate cash advantages to the government in employees working beyond 65. This is because employers continue to be liable for employer National Insurance Contributions on employees over 65. What's more the employer's NIC contributions are at the same rate for employees over 65 as for other employees.  Further, many employees are likely to defer claiming State Pension until after they have retired. Whether for this or other reasons, the government's short term objective, subject to consultation, appears to be to increase the default retirement age from 65 to some as yet unspecified age (it may be relevant that the 2007 Pensions Act already provides for the State Pension Age to be gradually increased to 68, albeit only in the fairly distant future). 

On 7th August the UK Pensions Regulator indicated that the age would be increased beyond 68 and made clear that this is for financial reasons (BBC News). The political gloss on the issue has been provided by Terry Rooney MP, Chair of the Work and Pension Committee:

"The Default Retirement Age is discriminatory, is bad for society, bad for older people, and bad for the economy. It has to go."

All this probably makes it more rather than less likely that bringing forward the review of the default retirement age will soon lead to a proposal to change the law, if not to abolish the default retirement age at least to increase it in the fairly near future. 

In the meantime Age Concern and Help the Aged have not yet given up their well publicised but uphill struggle in the Heyday case to have the current age 65 "default retirement age" declared unlawful as contrary to EU age discrimination rules.

Finally it should be noted that the consultation noted above, "Building a society for all ages" (13th July 2009), considers various aspects of provision for older people and is not solely concerned with changing or removing the default retirement age.  It closes on 12th October 2009.

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4. Consultation and TUPE

When a business (as opposed to shares) is being sold the TUPE regulations impose obligations on the seller and purchaser to provide specified information to affected employees or their representatives. In some circumstances (technically, where any "measures in relation to an affected employee" are being taken) there must also be proper "consultation".

The regulations provide that if an employer has failed to inform or consult as required a disaffected employee may present a complaint to an Employment Tribunal. The tribunal can make an award of "appropriate compensation" of up to 13 weeks' pay.  Indeed unless there are mitigating factors the award is likely to be the maximum, 13 weeks' pay, because the EAT ruled in 2005 that, in spite of its name, the "compensation" is in fact a punitive award designed to be a deterrent and is not compensation for loss.

The detail about who should be informed/consulted and about who can present a claim to an employment tribunal if the employer(s) fail to comply with their obligation is complicated.  It all depends on whether employee representatives have or have not been elected and whether members of a recognised independent trade union are involved.

This was highlighted recently in an employment appeal tribunal case.  Workers on Liverpool Council housing stock were transferred from Enterprise Liverpool Ltd  to two other companies.  The TUPE regulations applied but it was not clear that the correct consultation procedures had been followed. A group of workers sued.  The employers said, in effect, "sorry chaps - you have no standing to sue as you were all members of either UCATT or UNITE, both of which are recognised independent trade unions and the relevant part of the TUPE regulations (reg 15(1)(c)) provides that, on the facts of this case, any claim must be made by the trade unions not by you as individuals".

The obvious answer was to start again with the Trade Unions as claimants.  However, by the time the matter came to the attention of the Unions' solicitors it was too late. Any such claim would have been out of time. 

As we have frequently observed time limits for making tribunal claims are generally strictly enforced so, presumably for that reason, the Unions tried a more subtle tack.  They applied to the employment tribunal for permission to amend the claim so as to replace the individual claimants with UCATT and Unite.  The tribunal gave that permission.  The employers appealed to the EAT but lost. The basis of the quite complicated EAT judgment was the simple proposition that it was correct "to take into account all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it". 

As ever with TUPE the important practical message lies not so much in the outcome of the case as in the fact that it shows how even a substantial employer can be confused as to how properly to implement the information and consultation rules in the TUPE regulations. It is a complex area and anyone involved in a prospective TUPE transfer should ensure that they contact us well in advance.

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5. Whistleblowers' allegations to be sent by tribunals to regulatory bodies?

The Department for Business, Innovation and Skills (BIS) replaced the Department for Business, Enterprise and Regulatory Reform (BERR) in June 2009 (only two years after the BERR had replaced the DTI).  One of the first actions of the BIS has been to launch a consultation on facilitating the exchange of information between employment tribunals and regulators in whistleblowing cases. 

Employment Tribunals already, as a matter of course, notify Acas (the semi-official arbitration and conciliation service) of most claims so that Acas can offer its conciliation services to the parties. The new suggestion is that, subject to safeguards, tribunals should also be given power to forward to the "relevant regulator" any claims which involve whistleblowing allegations (PIDA or Public Interest Disclosure Act claims). The underlying issue, for example non-compliance with health & safety law or care home standards, could then be investigated quickly by the appropriate regulator.

In more detail the BIS consultation, entitled "Employment Tribunal Claims and the Public Interest Disclosure Act, July 2009", suggests that whenever a claim form lodged with an employment tribunal discloses a PIDA allegation, the employment tribunal would have power to send a copy directly to the relevant regulator. It is suggested that this should be done if, but only if, the claimant has ticked a "yes" box on the form.

Last year, employment tribunals received around 1,700 claims involving Public Interest Disclosure Act allegations.

The consultation closes on 2nd October 2009. It says that 6th April 2010 is the intended commencement date for the new arrangements. As it includes complete draft regulations to implement the suggestion, it seems likely that that date can be met.

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6. Authors and poets last month, now will MPs need a criminal record check to visit schools?

As we reported last month the government has recently circulated leaflets outlining the new "Vetting and Barring Scheme" (or VBS) designed to improve on current arrangement for helping to prevent unsuitable people working with children or vulnerable adults. The new rules, made under the Safeguarding Vulnerable Groups Act 2006, will be fully operational by November 2010 but an important stage in implementing them comes into effect in October 2009. A little more detail about the transitional arrangements is now available.

Under the new rules a newly created  "Independent Safeguarding Authority" will maintain two lists of persons barred from carrying out "regulated activity", a "Childrens Barred List" and an "Adults Barred List".  These two lists replace the previous three seperately administered lists known as List 99, the Protection of Children Act List ("POCA") and the Protection of Vulnerable Adults list ("POVA").  

An important stage in implementing the new rules comes into effect on 12th October 2009.  From that date it is to be a criminal offence for a barred individual to seek or undertake work with vulnerable groups or for "Regulated Activity Providers" knowingly to employ such a person (the government has recently published draft regulations - the draft "Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009" - providing for the 12th October start date).

The other side of the coin is that from November 2010 all new employees and volunteers wanting to work with children and vulnerable adults will have to be registered with the VBS.  It will then become illegal to employ people to do such work if they are not registered.  This of course is a big step further than the rules noted above which make it illegal for a Regulated Activity Provider knowingly to employ people whose names are on the barring registers. 

Registration will begin in July 2010. It will not replace Criminal Records Bureau ("CRB") disclosure which is different and will continue to be required as previously.

An interesting aside is that a report in the Guardian newspaper indicates that an MP, Kerry McCarthy who represents Bristol East, believes that the laws she helped pass will prevent MPs from visiting schools.  Whether or not this is the case, it is true that as a matter of law CRB checks are only available to organisations and for those professions, offices, employments, work and occupations listed in the Rehabilitation of Offenders (Exceptions) Order 1975 as amended.  The list does not include Members of Parliament. And presumably, because MPs are office holders rather than employees, they cannot get around this by being sponsored by an "employer". So she may have a point!

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7. Discrimination and job applications

A devious technique has sometimes been been used since discrimination law first came into effect in the 1970s.  A phoney job applicant might put in multiple job applications for the same job, identical save for a potentially lucrative detail.  The detail might relate, for example, to race or ethnic origin, gender, disability or since 2006 to age, the first of which might be hinted at by using perhaps an African sounding name in one application and a British sounding name in another otherwise identical application.  In either case, if one application leads to an invitation to an interview but others do not, the potential employer is likely to find a demand for money, or a threat of legal action for contravening anti-discrimination law, is soon on his desk. 

The Daily Mail (no doubt with some relish)  recently ran an article concerning a government operation which may result in showing whether this is a serious problem and whether employers do turn down applicants on the basis of their names.  Under the heading "Anger as Government sends out 2,000 bogus job applications to unmask 'racist' companies", the Mail has reported that civil servants have fabricated over 2,000 job applications, applying to each job with two or three CVs. In each case the CVs have been essentially the same but different fictitious names are given (generally one which sounds traditionally English and the other/s which sound foreign).

The British Chambers of Commerce strongly advised against the research on the grounds that it was "unethical and a complete waste of time" but the DWP defended the operation on the basis that it is "right to find out if there was an issue regarding people being discriminated against because of their ethnicity when applying for jobs".  According to the Chartered Institute of Personnel and Development (CIPD) the project may be laying the groundwork for future legislation requiring nameless CVs to be used in job applications.

The DWP says that 1,000 jobs were involved. Apparently interview calls go to a mobile phone number which politely declines an interview.

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8. ...and finally: farewell House of Lords, hello Supreme Court; Peninsula in the wars and qualifications for life

the end of an era, mais plus ca change...

It seems strangely appropriate that on their very last day the Law Lords were grappling with a dispute over ownership of the copyright in the song "A Whiter Shade of Pale" by Procol Harum. From 4.30 p.m. on 30th July they handed down judgments which, in addition to the copyright dispute, covered a duty owed by auditors, a term in a contract of reinsurance, interpretation of the test for capacity to consent or refuse a sexual touching, the power to make orders against foreign directors in respect of foreign assets, compensation for compulsory acquisition of land and clarification concerning whether the husband of a sufferer of incurable and progressive multiple sclerosis would be prosecuted should he help his wife to die. At least two of those cases include significant restatements of the applicable law in a particular area so that, in future, courts will be bound to approach such matters from a different perspective.

It is easy to think of judges as presented in the media as mavericks, out of touch, pursuing their own agendas and coming up with variously draconian or woolly liberal judgments which "fly in the face of common sense". In the past there have been judges at all levels whose conduct, both in and out of court, has been difficult if not impossible to justify. However, in the higher appellate courts we undoubtedly now have some of the greatest minds of our times and the overall standard is likely to get even with higher with forthcoming appointments.

If you have an opportunity it is worth taking a look at the archive of House of Lords judgments. Yes, some of the judgments are very dry and technical but others, particularly those dealing with matters of public policy, provide a fascinating insight into how law makes its way from the statute book to practical application. It is also possible to identify "judge-made law" where there is no relevant statutory provision and, more controversially, where the interpretation of the law by judges produces a result which the legislators probably never intended.

From October this year, the business formerly conducted by the Law Lords will be dealt with by the United Kingdom Supreme Court. Names and titles are changing and proceedings will be televised (presumably in a very deep and distant part of the digital network) but we can be confident that the generally very high judicial standards which we have enjoyed at this level in recent years will improve yet further.

Peninsula in the wars

One or two of you may have heard of an organisation called Peninsula Business Services (we're sure you'll forgive us if we don't provide you with a website link!). If so, then you're in company with the employment judge referred to in the recent case of Peninsula -v- Malik. Far be it from us to pass any comment but it seems that the employment judge is not a fan!

Training for the future

There has been a good deal of recent coverage of concerns expressed by employers that school leavers are ill-equipped for work and that, in particular, the basics (such as maths and grammar) are deficient if not more or less entirely lacking in many cases.

Clearly the enterprising souls at Rochdale Activity Generation have taken this criticism to heart as demonstrated by their recent award of a certificate to 15 year old Bobby McHale for catching a bus. The certificate, issued by the AQA exam board, recognised his ability to walk to the local bus stop, stand or sit at a bus stop, wait for the arrival of a public bus, sit on the bus and observe through the windows. Unfortunately Bobby's 13 year old brother Joe, who attended the same outdoor activities scheme, did not receive a certificate. "Maybe he wasn't up to it", commented Bobby. Asked about his son's award, father Andy said "We think he may go far...as long as he gets the 135!"

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