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November 2016 Review
Welcome to our review of last month's employment law news.

Judges are very much in the news with the Supreme Court Brexit appeal taking place as I'm typing this. Among this month's reports is a case concerning whether a district judge is a worker or an office-holder or both. There is also discussion about a case concerning whether or not an employer is liable for an assault which takes place in the aftermath of a Christmas party. Although this is a personal injury case, the principle in issue: whether an employer can be held liable for the acts of an employee, applies equally to employment law matters. Other reports cover whether a bar on over 35s applying for recruitment as police officers is discriminatory and the importance of making sure that prior warnings are themselves fair and appropriate if they are to be relied on, even in part, as justifying a dismissal.

This is the last newsletter before the Christmas and New Year break. I would therefore like to take this opportunity to wish all readers a very pleasant break if you are lucky enough not to be working, or the opportunity to feel ultra virtuous if you are! If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,

Martin Malone
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This month's news
Employer's liability for assault following a Christmas party?
by Martin Malone
It is widely reported every year that employment law rights and Christmas parties often collide in a frequently drunken sequence of events that ends up either in an employment tribunal, with a large compensation payment by the employer, or both. This time last year I wrote about a reported decline in "risky" office parties and, a month earlier, about a case resulting from fairly outrageous behaviour by MBNA employees at Chester races.

This year the facts of the case I'm reporting revolve around a Christmas party but stray away from conventional employment law into the area of the potential liability of an employer for the acts of its employees in the context of personal injury.

On 1 December the High Court handed down its judgment in the case of Bellman v Northampton Recruitment Limited, which was heard from 24 to 26 November. It is a sad story about the aftermath of a Christmas party which got thoroughly out of hand and resulted in the Claimant, Mr Bellman, suffering brain injury which was so severe that he has no recollection of the incident and had to appear in court by a litigation friend.

John Major, his wife Beverley and Michael Geoghehan were directors and shareholders in Northampton Recruitment Limited which ran franchised offices of Drivers Direct, a temp agency for HGV drivers. (Following the assault the Company went into liquidation in June 2012 and was dissolved in October 2013.) The Claimant, Mr Bellman, and Mr Major had been friends since childhood and in 2010 Mr Major offered Mr Bellman the post of sales manager which he accepted in November of that year. He was on a daily rate of £80 plus commission. In 2011 the Company's Christmas party took place at the Collingtree Golf Club on 17 December. 24 people were in attendance. Alcohol was freely available. One witness recalled that he had about 12 pints and a couple of Jack Daniels in the course of the evening. When the party finished about half of those in attendance decided to continue at the nearby Hilton Hotel.

At about 3.00 a.m. and reportedly unprovoked, Mr Major punched Mr Bellman in the face. Mr Bellman got up and Mr Major punched him again. This time Mr Bellman "went straight back like a falling tree" and hit the marble floor. He was bleeding from his nose, ears and mouth. One employee in attendance thought that he was dead. He was taken to local A&E and then moved on to the specialist unit at John Radcliffe Hospital where he was diagnosed with various brain injuries.

Fortunately he survived but subsequently suffered from numerous symptoms including headaches, deficits in verbal reasoning, speech and language impairment. He was diagnosed with "very severe traumatic brain injury with subsequent cognitive, emotional and behavioural consequences". He is unlikely to return to any form of paid employment.

Mr Major was arrested and charged with GBH. However, the criminal prosecution did not proceed as a result of a mistake made by the CPS.

In the High Court Judge Cotter QC described it as "...a brutal assault comprising...two phases separated by Mr Major being removed and held back by others, breaking free and returning to strike at a time when Mr Bellman, rather than being aggressive, was pleading with him to see sense". The claim was reported to be valued at £1 million. What is intriguing from a legal perspective is that the personal injury claim brought on behalf of Mr Bellman was directed not to Mr Major but to the employer, Northampton Recruitment Limited (and thereby for all practical purposes against the insurer of the insolvent company).


Is a district judge entitled to whistleblower protection as a worker?
by Martin Malone
The traditional perception of a judicial appointment is that it brings with it generous terms of employment as well as very valuable pension arrangements on retirement.

While that might have been the case for many years, it is most certainly not the current position and senior judges have expressed concern about the impact on morale and recruitment. Judges at all levels are being required to deal with increased workloads, archaic IT and the challenges presented by a large increase in the number of unrepresented parties, as a result of severe restrictions on the availability of Legal Aid. If that were not enough much higher small claims limits, below which most legal costs are not recoverable, have priced many people out of being able to afford professional legal representation so cases are less well prepared and the guiding hand of a professional who might advise terms for settlement is absent.

While recent decisions seem to have applied a wide interpretation to what working terms are sufficient to establish employment rights as a worker (for example see last month's Uber case), the opposite is the case as far as district judges are concerned. In Gilham v Ministry of Justice the Employment Appeal Tribunal (EAT) was asked to consider whether, in addition to being an office holder, District Judge Gilham was also a worker and therefore entitled to protection from whistleblowing.

I will not repeat what is required in law to be considered as a worker because I dealt with this last month when reporting the Uber case. In the employment tribunal the judge found that:
  1. District judges are appointed by the Queen on the recommendation of the Lord Chancellor, are paid a salary as determined by the Lord Chancellor (which may be increased but not reduced) and are assigned to areas (circuits) by the Lord Chief Justice.
  2. District judges hold office to the age of 70. They can only be removed for misbehaviour or inability to perform their duties (the latter only with the concurrence of the Lord Chief Justice).
  3. Their judicial role, functions and authority are prescribed by statute and rules of procedure made under statutory authority.
  4. Their terms of service are set out in memoranda issued by the Lord Chief Justice from time to time.
  5. The memoranda cover such matters as allocation of work, deployment, wellbeing and training ad general advice and direction.
The Lord Chief Justice therefore has responsibility for and control over the activities of district judges.

Ms Gilham was appointed as a salaried district judge in January 2006. She was assigned to the Crewe County Court and subsequently sat at Warrington County Court. The offer of appointment letter referred to "terms of service" but there was nothing to indicate the creation of a contract or which referred to employment.


Is it discriminatory to exclude over 35s from police recruitment?
by Martin Malone
In the UK applicants for police recruitment have to be at least 18 years old. There is no upper age limit but the normal retirement age is 60. Eligibility requirements also cover such matters as nationality, criminal record, tattoos, financial status, physical fitness, health and eyesight.

In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias the European Court of Justice (CJEU) was asked to consider whether an age limit of 35 for a competition for recruitment to the Basque Police was discriminatory on the ground of age. Mr Sorondo brought proceedings in the Spanish High Court concerning the decision of the Director-General of the Basque Police and Emergency Services Academy, objecting to the conditions for participation in the competition and, in particular, the requirement of candidates to be under 35 years old. He was over 35 and claimed that there was no justification for the age limit imposed.

Local legislation provided as follows:

A candidate for recruitment as a police officer must be aged 18 or over and under 35. However, with respect to recruitment to local forces, the upper age limit may be revised taking into account services provided within the local administration, in the local police forces.
The High Court referred the question to the CJEU, noting as it did so that there was a previous ruling that an upper age of 32 years for the recruitment of Basque police officers complied with the requirements of proportionality and that a similar decision permitted a limit of 30 years for intermediate career posts in a fire service.


Taking into account prior warnings when dismissing
by Martin Malone
The Employment Appeal Tribunal (EAT) decision in Bandara v British Broadcasting Corporation provides a reminder of the need to be careful when considering prior warnings in the context of deciding to dismiss someone.

Mr Bandara worked as a senior producer for the BBC, having commenced employment in as a producer in July 1995. He worked within the Sinhala Service. His employment record in the period to 2013 was unremarkable. In March 2013 he was asked to book his team on a training course. He argued that this was the responsibility of another employee and he shouted at that employee. The other employee reported the matter to HR but there is no record of any action having been taken.

Mr Bandara was working on 23 July 2013, the day after Prince George was born. He decided not to prioritise the story because it coincided with the 30th anniversary of Black July, a sombre date in Sri Lankan history. The Service opened accordingly at 10.00 a.m. However, another employee disagreed with Mr Bandara's approach and at 12.08 p.m. the news about Prince George's birth was broadcast.

In August 2013 Mr Bandara was made the subject of disciplinary proceedings in respect of both incidents. By letter dated 19 November he was notified of the employer's decision by investigator, Ms Iootty:

After carefully considering the allegations and your response to them, I have concluded that I believe that the allegations are true. This is an extremely serious matter as your behaviour in relation to both the incidents potentially constitutes gross misconduct. However I have taken into account that your behaviour has never been formally addressed before while you have been working at the BBC.
He was issued with a final written warning.

Further disciplinary proceedings followed in 2014 and resulted in Mr Bandara's summary dismissal. Charges included: applying pressure on an employee to require another employee to leave a meeting; applying pressure on an employee to drop disciplinary proceedings; behaving in a bullying and intimidating manner; being involved in creating an perpetuating a culture of fear within the Sinhala Service; describing another employee in a discriminatory way by calling him a "sudda"; refusing to obey an instruction and shouting angrily to colleagues on two occasions.

The matter proceeded to an employment tribunal and in July 2015 it was found that the final written warning that had been issued was manifestly inappropriate. However, the tribunal concluded that the decision to dismiss was nonetheless fair. Mr Bandara appealed and the BBC cross-appealed on the finding that the final warning was "manifestly inappropriate".


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Katharine Kelly
Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis. Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.
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Sean Carty
Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.
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Martin Malone
Martin is a Partner in the Firm and splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.
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