guidance on costs orders

Two cases this month look at the question of costs orders. Rogers v Dorothy Barley School was an unsuccessful breach of contract claim brought by a school caretaker. Representing himself, he alleged that the school were in breach of contract when he received a water bill, in error, in respect of the house he occupied at the school. Although he did not have to pay the bill, he felt that it was a breach of contract that he had received it at all. He was unsuccessful on the grounds that the tribunal had no jurisdiction to hear the claim, because it can only deal with breach of contact claims where the contract has ended.
He appealed the tribunal decision, again without success, and the school made an application that he should pay its costs.

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resignation “with immediate effect” takes immediate effect

Horwood v Lincoln County Council is a useful reminder that although the parties to a contract can, between them, agree to change the end date of a contract, bringing it forward and or putting it back, that cannot displace the effective date of termination as defined in the Employment Rights Act 1996 s. 97, which is crucial for calculating time limits for bringing employment claims.
Ms Horwood wrote a letter of resignation to her employer in response to what she said were defects in a disciplinary process applied to her and her subsequent demotion, claiming that these amounted to constructive dismissal. Her letter stated that she wished her resignation to have "immediate effect".

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when is the reversal of burden of proof triggered?

The provision of the Equality Act 2010 reversing the burden of proof in discrimination claims (section 136) means that if a claimant can show facts which could amount to discrimination, then a tribunal must find for him or her, unless the employer can show that there was another explanation for those facts.
In Dziedziak v Future Electronics Ltd an employee selected for redundancy sought to rely on this reversal of the burden of proof, claiming, amongst other things, that the use of attendance as part of the selection criteria was indirectly discriminatory, because her attendance record as a single parent with responsibility for a sick child was poor. She failed in this part of her claim, because the tribunal found as a matter of fact that her lateness had not had an impact on her selection. Because she had not established that fact, the reversal of the burden of proof was not triggered, and her claim failed.
Although unsuccessful in this part of her claim, Ms Dziedziak did succeed in an unfair dismissal claim

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tribunals have no power to allocate liability between joint respondents

Brennan & Others v (1) Sunderland City Council (2) GMB (3) Unison is a case arising from somewhat unusual circumstances, but the decision is one of relevance in many more situations. It is part of the long running equal pay saga arising from changes in NHS terms and conditions. Briefly, the claimants are alleging that the preservation of certain bonuses for male staff in a collective agreement perpetuated unequal pay. As well as making equal pay claims against their employers, some claimants also named their trade unions as respondents to the claims, because they were parties to a discriminatory collective agreement. This decision of the Employment Appeal Tribunal deals with whether employment tribunals have jurisdiction to apportion liability between the respondents to a discrimination claim.
The answer to this question requires a little legal history. It depends on the interpretation of the Civil Liability (Contribution) Act 1978, which updated and extended the Law Reform (Married Women and Tortfeasors) Act 1935 to breach of contract cases.

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servant or serf?

It doesn’t seem so long ago that the concept of an automatic transfer of employees under TUPE evoked exclamations of incredulity and disbelief amongst non-lawyers (and some lawyers). Now we have all got used to the idea, Gabriel v (1) Peninsula Business Services Ltd (2) Taxwise Services Ltd reminds us that unless TUPE applies, employees cannot be transferred without their consent. To paraphrase Lord Atkin in the case establishing this principle (Nokes v Doncaster Amalgamated Collieries Ltd [1940] House of Lords), it is the right of a citizen to “choose for himself whom he would serve”, and this right of choice constitutes the main difference between a “servant and a serf”.
The case came about after Peninsula, where Ms Gabriel worked, bought the shares in a company called Qdos Taxwise Ltd (“Taxwise”) in 2007.

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rejected applicants have no right to disclosure of the successful candidate’s details

Do rejected applicants have the right to disclosure of documents relating to the successful candidate if they consider they have suffered unlawful discrimination the the recruitment process? No, said the European Court of Justice (ECJ) in Meister v Speech Design Carrier Systems GmbH which was a claim by an applicant for a job as an experienced software developer, who made a complaint that she had been discriminated against on the ground of her sex, age, and ethnic origin when she was not short-listed for interview. The questions considered by the ECJ were:

1 – does the principle of equal treatment under EU law mean that unsuccessful applicants are entitled to information about the successful applicant; and
2 – does refusal of that information give rise to any presumption of discrimination?

Having answered the first question in the negative, the ECJ went on to say that the second question was one for the national courts of each country to decide.
On the face of it, this decision is a relief: the possibility of routine disclosure of details of successful candidates to unsuccessful ones doesn’t bear thinking of from all sorts of angles: preserving confidentiality; the administrative burden and the sheer nuisance value. But what approach will UK courts take to deciding whether a refusal to disclose details suggests that there may have been discrimination, given that:
it cannot be ruled out that a defendant’s refusal to grant any access to information may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination

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indirect discrimination related to retirement is unlawful age discrimination

Another important age discrimination and retirement case this month is Homer v West Yorks Police, which concerned a senior police officer who became a legal adviser at the Police National Legal Database after retiring from the police aged 51. At the time he joined, there was no requirement for advisers to have a law degree, but the PNLD later introduced a new grading structure, which required a degree for promotion to the top grade, with the intention of improving recruitment and retention. At this point, at the age of 62, Mr Homer was allocated to the second highest grade. He made a complaint of indirect discrimination because he would be unable to complete a law degree before his planned retirement age of 65, and so could not get promotion. He failed in both the Employment Appeal Tribunal and in the Court of Appeal, because it was considered that the reason for the discrimination was not his age, but his impending retirement.
The Supreme Court rejected this approach: it did not make sense to compare those approaching retirement with those leaving for other reasons, over which they had a choice, with those faced with a compulsory retirement age, nor was it realistic to treat retirement as unrelated to age.

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justification for direct age discrimination must be related to the general public interest

This month’s biggest employment law news stories have to be the Supreme Court’s two decisions on age discrimination in Seldon v Clarkson Wright & Jakes and Homer v West Yorks Police. Both give useful guidance about how cases on age discrimination will be considered from now on – but both leave questions to be considered further.
Seldon is a case relating to membership of a professional partnership, but the principles discussed will apply equally in employment cases. Put briefly, Mr Seldon, senior partner in a law firm, challenged a rule in in the partnership deed providing for compulsory retirement at age 65 as direct age discrimination. The partnership defended the rule on the basis that it was justified, that is, that the rule was a proportionate means of achieving a legitimate aim. Three of the reasons put forward as legitimate aims were accepted by the employment tribunal:
1 – retention of associates by ensuring that they have a chance to become partners within a reasonable time;
2 – facilitating workforce planning; and
3 – promoting a supportive culture by minimising the need to use performance procedures to expel partners.

At both Employment Appeal Tribunal and Court of Appeal levels it was considered that the mandatory retirement age was justified. Mr Seldon appealed to the Supreme Court, whose judgment surveyed the relevant European case law and drew out some general principles from it.

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a call for evidence on compensated no-fault dismissals

Contrary to what you might have read in the papers (naming no broadsheet names), “compensated no-fault dismissals” have no date for implementation. However, The Department for Business Innovation and Skills has put out a “call for evidence” on that proposal, and, more generally, for views on how the current ACAS Code of Practice operates in practice – and whether it is too onerous. If you go to the trouble of wading through the whole document you will discover that it constantly refers to “perception” and “fear” of employment law regulation, and that in international league tables of such things, the UK shares second place with Canada after the US as the easiest place in the developed world to dismiss employees. You will also discover that health and safety is a bigger issue for most employers than unfair dismissal law.
Leaving aside the question of whether the reforms contemplated are based on rational considerations or not, it is interesting to see that a possible model for a dismissal regime for “micro” businesses is the Australian Small Business Code. This certainly has the merit of brevity, being a mere five pages, including a checklist for employers to complete.
But how would such a code stand alone, without any reference being made to the law of unfair dismissal, and whatever more extensive guidance is provided for other employers?

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pension rights of part-time judges

Of direct personal interest to a minority of our readership – albeit a very important one(!) – is O'Brien v Ministry of Justice in which the European Court of Justice (ECJ) dealt with a long running case on the question of whether part-time fee paid judges are entitled to the protection afforded to part time workers by the EU Part Time Workers Framework Directive 97/81/EC. It arises because while full time judges, and salaried part time judges, are entitled to pensions as part of their terms of service, no pension provision is made for judges who work on a fee-paid sessional basis.

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