Kathryn Broughton submitted a complaint to the Employment Tribunal in 2010 after her manager made a number of  derogatory remarks about [...]]]> A Claimant in the Employment Tribunal has won her case for constructive dismissal, sex discrimination and sexual harassment after her manager told her that she wear a push-up bra to show off her breasts.

Kathryn Broughton submitted a complaint to the Employment Tribunal in 2010 after her manager made a number of  derogatory remarks about her chest, including asking her whether she was wearing a push-up bra. When Ms Broughton failed to reply her manager, Mr Andrew Stephens, stated that she “really should” and that she would get more tips if she did so.

Miss Broughton resigned from her job in June 2010 after Mr Stephens directed a number of derogatory remarks at her. This included the remarks about the bra, comments on her sexual health, and constant comments on her breasts. She said that he was motivated at times by attempts to befriend another staff member at the pub.

The Employment Tribunal found in the Claimant’s favour in her claims for sex discrimination and sexual harassment and awarded her £10,000 in damages. She was further awarded £529 in lost earnings.

If you’ve been subjected to less favourable treatment by your employer (or one of it’s employees) because you’re a woman or unwanted (possibly sexual) comments are being made at work then you should obtain independent legal advice on your position. Such treatment is unlawful and you should not be forced to tolerate it to retain your job.

Mr Prior (“the Claimant”) worked [...]]]> This case concerns

1. the attribution of fault for a dismissal to an employee if the employee engages in misconduct outside of work that results in a prison sentence; and
2. how the Employment Tribunal should approach the remedies of re-engagement and reinstatement

The facts in Prior v City Plumbing Supplies Ltd

Mr Prior (“the Claimant”) worked for City Plumbing Supplies Ltd (“the Respondent”) as a driver. In May 2008 he was convicted for homophobic behaviour towards a third party and subjected to a restraining order. In December 2008 he was convicted of the same offence and in June 2009 breached the restraining order. The Respondent gave the Claimant a final written warning in the last instance for bring its name into disrepute but received a complaint from a customer in March 2010 regarding the Claimant’s behaviour. He was given a further written warning which was subsequently overturned on appeal. However, in May 2010 the Claimant was convicted for breaching the restraining order and received a sentence of 18 weeks’ imprisonment, of which he actually served 9 weeks. He was dismissed as a result.

The Claimant subsequently submitted a complaint to the Employment Tribunal of unfair dismissal. The Employment Tribunal found that the period of time that the Claimant would have been absent from work was not sufficient to frustrate the contract of employment. There was not therefore a relevant fair reason under s.98 of the Employment Rights Act 1998 and a finding of unfair dismissal was arrived at. However, the Employment Tribunal found that the Claimant was two-thirds at fault for the dismissal and reduced his compensation accordingly. Further, the Employment Tribunal dismissed the Claimant’s contention that he should be reinstated or reengaged but did not give reasons for doing so. The Claimant appealed on the basis that:

1. The Tribunal had made errors of law in concluding that the Claimant was guilty of contributory fault and had failed to specify the conduct which evidenced such. Further, the Employment Tribunal had failed to give sufficient reasons
2. The Tribunal had failed to give any reasons at all for rejecting the Claimant’s request for an order for reengagement or reinstatement

The law relating to misconduct, unfair dismissal and contributory fault

In order for a dismissal to be fair, the Respondent must prove on the balance of probabilities that its reason to dismiss the Claimant fell inside one of the six potentially fair reasons specified in the Employment Rights Act 1996 (such as misconduct, incapability etc.). However, if the nature of the termination of the contract is such that one of the six potentially fair reasons doesn’t apply then Respondent’s often try and argue that the contract was frustrated on the facts – that it was impossible for the employee to fulfil his obligations to the employer (in this case the employee’s unavailability).

For an employee to be deemed at fault for his dismissal, the employee must (obviously) have been in some way culpable for their dismissal. The amount that the Employment Tribunal will reduce an award by depends on the unreasonableness of the employee’s conduct and the Tribunal has complete discretion as to the amount of the reduction (even up to 100%).

The Employment Appeal Tribunal’s decision in Prior v City Plumbing Supplies Ltd

The Employment Appeal Tribunal found in the Claimant’s favour on the second ground of appeal (the order for reengagement or reinstatement) but not on the first ground (contributory fault).

The EAT found that the Tribunal had specified what conduct the Claimant had engaged in that was unreasonable, and further determined that they had linked such unreasonable conduct to the dismissal. On that basis the Tribunal had reduced compensation by two-thirds (instead of the 100% requested by the Respondent). However, the failure to give any reasons at all for the rejection of the order for reengagement or reinstatement was an error of law. The matter was therefore remitted to the Employment Tribunal on this issue.

Our specialist employment lawyers’ thoughts on Prior v City Plumbing Supplies Ltd

As with many cases in the Employment Tribunal, this case centres on the Employment Tribunal’s sometime predilection to fail to give adequate reasons for arriving at a conclusion. A failure to give sufficient reasons is an error of law. If you have received a Judgment which (in your opinion) doesn’t fully set out reasons for the conclusion then you may have solid grounds for an appeal to the Employment Appeal Tribunal.

Tuf America, a hip-hop and R&B label based in America, alleges that The Beastie [...]]]> In what must be one of the most unfortunate timings of the year, The Beastie Boys are being sued for copyright infringement in the USA just days beforethe death of one of the trio of rappers, Adam “MCA” Yauch, was announced.

Tuf America, a hip-hop and R&B label based in America, alleges that The Beastie Boys sampled tracks that Tuf America owned the copyright to on its Paul’s Boutique and Licensed to Ill albums. Specifically, Tuf America is alleging that The Beastie Boys utilised samples from “Drop the Bomb” by Trouble Funk in their songs “Hold It Now Hit It” and “The New Style” (on the Licensed to Ill album) and used Trouble Funk lyrics in another song of theirs, “Say What” (on the Paul’s Boutique album).

As well as The Beastie Boys, their record label Capitol Records is also being sued.

However, Paul’s Boutique and Licensed to Ill were published in the 1980′s, prior to the coming into force of the current relevant copyright statute in the United States. Tuf America, however, is attempting to retrospectively apply these laws to the initial publication of The Beastie Boys’ albums.

Under UK copyright law, The Beastie Boys’ tracks would have to have a de minimis degree of originality to avoid infringing the copyright of another work by sampling it.

If you have an intellectual property law issue then please contact one of our specialist solicitors today.

Ramon Braga, a trader in securities on the bank’s corporate credit desk in London, submitted his complaint for unfair dismissal to the Employment Tribunal after he was fired for colluding [...]]]> A former trader at UBS has taken his ex-employers to the Employment Tribunal after he was dismissed last year for certain trades that he made.

Ramon Braga, a trader in securities on the bank’s corporate credit desk in London, submitted his complaint for unfair dismissal to the Employment Tribunal after he was fired for colluding with Denis Minayev in “re-marking” the value of credit default swaps (“CDS’s”).

Mr Braga is claiming that the dismissal was unfair as he was thrown in “at the deep end” in his role at UBS. He further alleges that he wasn’t aware of the changes that Minayev made and believed that his actions were authorised by his line manager.

UBS in return has stated that they undertook an investigation into the incident and concluded that Mr Braga’s actions constituted gross misconduct. UBS’s position is that Mr Braga was not authorised to undertake the actions that he did and that he attempted to cover up his “re-markings” by asking a broker friend to send him a quote that justified the changes that he made to the valuation of the CDS’s. While Minayev and Braga were supposed to exchange information, they were not supposed to consult each other on the pricing of the financial derivatives.

If you’ve been unfairly dismissed or think that you might have a potential claim for unfair dismissal please get in contact with one of our specialist employment lawyers.

Mrs Hudson (“the Claimant”) commenced employment with the Department [...]]]> This case concerns the application of Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (“the Regulations”) to employment where it is argued that the original employment was offered under a particular Government scheme.

The facts in Hudson v The Department for Work and Pensions

Mrs Hudson (“the Claimant”) commenced employment with the Department of Work and Pensions (“the Respondent”) in April 2006 under a fixed-term contract. Her fixed-term contract was renewed after the initial contract a number of times and the latest fixed-term contract took effect on 19 October 2009. The Claimant sought a declaration from the Employment Tribunal in 2010 to the effect that she was now a permanent employee of the Respondent, as per Regulation 8 of the Regulations.

A Pre-Hearing Review was held. The Claimant claimed that she had completed the necessary four-year period of service referred to in Regulation 8 to allow her to be deemed a permanent employee. The Respondent resisted this on the basis that the Claimant’s employment was excluded from the Regulations as under Regulation 18(1)(a) her employment had originally been designed to provide the Claimant with training or work experience for the purpose of assisting her to obtain or seek work under arrangements made by the Government.

The Employment Judge held that the Claimant could not rely on Regulation 8 because of the exclusion in Regulation 18. The Claimant appealed on three points:

1. That she satisfied the conditions of Regulation 8 (she was an employee, was employed under a contract purporting to be a fixed-term contract, and had been previously employed on a fixed-term contract prior to the start of the current contract) and was therefore entitled to the declaration sought
2. That there was in the present case no “Government scheme” which she was employed on
3. That if she had been employed under a “Government scheme” then the purpose of the scheme was not to help her obtain or seek work

The law relating to fixed-term contracts and permanent employee status

The Regulations have two broad main aims – to protect fixed-term workers from less favourable treatment as a result of their employment status, and to establish how and when a succession of fixed-term contracts is deemed to become a permanent contract (with no fixed ending date).

Under the Regulation 8 of the Fixed-Term Employees Regulations employees who have been employed for a period of four years or more on a series of fixed-term contracts are deemed to be permanent employees unless the continued use of fixed-term contracts (instead of a permanent contract) can be objectively justified. The effect of the change from a fixed-term contract to a permanent contract is simply that the fixed contract term is of no effect – all other terms of the contract remain the same.

Unless the use of fixed-term contracts can be objectively justified or the employment falls within one of the exclusions listed in Regulation 18 then the employee’s contract of employment will be deemed a permanent one.

The Employment Appeal Tribunal’s decision in Hudson v The Department for Work and Pensions

The Employment Appeal Tribunal upheld all 3 points of the Claimant’s appeal. It was held that:

1. The Claimant was an employee, she was employed under a contract purporting to be a fixed-term contract, and she had been employed under a succession of fixed-term contracts until the current contract
2. She was not employed under a Government scheme in the current contract; and
3. That if she had been employed under a Government scheme in the current contract then the purpose of that employment was not to provide her with “work experience”

The EAT also allowed the Respondent permission to appeal to the Court of Appeal.

Our specialist employment lawyers’ thoughts on Hudson v The Department for Work and Pensions

The aim of the Regulations is clearly to prevent the less favourable treatment of fixed-term contract employees, either by virtue of certain tangible issues (such as less favourable contract terms) or by employing them on a succession of contracts “purporting” to be fixed-term contracts when they were actually permanent.

Hudson v The Department for Work and Pensions shows that Employment Appeal Tribunal will take a broad view of whether the employee was employed on a Government scheme and the fact that she may have been employed as part of a Government scheme at first does not preclude her from either relying on that period of continuous service which would otherwise be excluded or asserting that the nature of the employment had changed since.

The failure of the court case means that the 6,500 Rovers workers will be paid redundancy payments from the employee trust that was set [...]]]> MG Rovers workers have lost their seven-year battle in the High Court to recover funds to pay for their redundancy payments in the wake of the collapse of the giant carmaker.

The failure of the court case means that the 6,500 Rovers workers will be paid redundancy payments from the employee trust that was set up at the end of the company. This fund has assets of just £22,000, meaning that the previous Rover employees will be entitled to approximately £3 in redundancy payments each.

John Towers, Nick Stephenson, John Edwards and Peter Beale bought Rover for £10 in 2000, proceeding to pay themselves and Kevin Howe (the managing director) a total of £42 million. The company then went into administration in 2005 and Towers stated that a compensation fund would be set up to compensate employees who were unable to claim a full statutory redundancy payment. However, the compensation fund never received substantial funds. The 6,500 employees made redundant were therefore unable to claim a full statutory redundancy payment as they ranked as unsecured creditors against MG Rovers.

If you believe that you are about to be made redundant (or have been made redundant) then it is recommended that you obtain specialist employment law advice on your rights in a redundancy situation – including protection against unfair dismissal and entitlement to a statutory redundancy payment. It is important to act quickly as if your employer is insolvent then it may be difficult to reclaim monies at a later stage.

Dr [...]]]> This is a rather unusual case, made unusual by the fact that a Pre Hearing Review (“PHR”) which was initially scheduled for half a day had not concluded133 days after the claim was struck out by the Employment Judge.

The facts in Osonnaya v South West Essex Primary Care Trust

Dr Osonnaya (“the Claimant”) submitted complaints to the Employment Tribunal on 4 September 2007 relating to unfair dismissal for making a public-interest disclosure (“automatic unfair dismissal”), disability discrimination, and race discrimination.  Preliminary issues of whether the Claimant was an employee or a worker for the purposes of the law relating to unfair dismissal and disability and race discrimination. A Pre Hearing Review was therefore scheduled for 14 April 2008 to deal with these issues.

The claim for disability discrimination related in whole or in part to a serious illness that the Claimant has (“sarcoidosis”). This illness is an auto-immune illness and has serious effects on the Claimant – she is almost blind and is wheelchair-bound. As the Claimant was dependent on her carer to attend the Employment Tribunal she was often late for the 10.30am start. She also required injections during the day and lost her voice. Further, the Claimant struggled to obtain consistent representation. However, as the Hearing days passed the Employment Judge took the view that a fair hearing would no longer be possible because it couldn’t be predicted when the hearing would finish. The Judge therefore decided of his own volition to consider whether proceedings should be struck out on the basis that it was no longer possible to have a fair hearing. He considered that there was no evidence to suggest that there would be an end to the case, the Respondent was being prejudiced because of the costs of the case, and that potential problems with a witness in Tazmania would further delay the administration of justice. He therefore struck the claim out.

The Claimant appealed.

The law relating to the Employment Tribunal’s power to strike out claims

The Employment Tribunal has the power to strike out a claim (or a response) under Rule 18(7) of the Tribunal Rules in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Under Rule 18(7) a claim (or a response) may be struck out if:

• The claim or response is scandalous or vexatious
• The claim or response has no reasonable prospect of success
• Proceedings have been conducted by or on behalf of a party in a scandalous, unreasonable or vexatious manner
• The claim has not been actively pursued
• There has been non-compliance with an order or practice direction; and/or
• It is no longer possible to have a fair full hearing (Rule 18(7)(f)

Rule 18(7)(f) (the possibility of a fair hearing) normally arises in cases where medical incapacity has rendered a Claimant unable to pursue his or her case effectively (as in Peixoto v British Telecommunications PLC). However, rulings under Rule 18(7)(f) are extremely rare in practice.

This power generally only arises at Pre Hearing Reviews. However, there is one exception – if an “unless order” has been issued and a party has failed to comply with the “unless order”. In those circumstances the claim can be struck out with a Pre Hearing Review being attended.

The Employment Appeal Tribunal’s judgment in Osonnaya v South West Essex Primary Care Trust

The Employment Appeal Tribunal upheld the Claimant’s appeal. A sufficient amount of time had not passed such as to absolutely prejudice the possibility of a full fair hearing and the Employment Appeal Tribunal believed that the Judge’s case for striking out the claim was overstated. What he should have done instead was to exercise his case management powers to marshal the parties and bring the case to a conclusion within a reasonable time. Further, the financial prejudice to the Respondent had to be weighed against the possibility of a fair trial, and the necessity of a fair trial generally outweighed any financial prejudice (although consideration had to be had to the financial circumstances of the Respondent). Further, the Judge had made a medical judgment relating to the Claimant’s capacity to continue the hearing, a judgment he was not entitled to make.

Our specialist employment lawyers’ thoughts on Osonnaya v South West Essex Primary Care Trust

This is a purely procedural case but one which raises important and interesting issues relating to the Employment Tribunal’s power to manage and strike out claims. Employment Judges clearly have the right to exercise the power to strike out claims under Rule 18(7) but in doing so must obtain sufficient evidence to make a reasoned decision. Further, the Judge must not make decision that he is not entitled to (such as on medical evidence).