I was asked an interesting question recently by a reader as to whether COT3 clauses which seek to prevent Claimants from giving evidence in other Employment Tribunal claims brought against the same employer, could be enforceable.
I do not recall coming across such clauses personally, but it perhaps is no surprise that some employers, particularly those with a plethora of claims against them, would seek to discourage Claimants from assisting other employees’ claims.
However, the problem from the employer’s perspective is that it appears likely that such clauses would be unenforceable on the grounds of illegality/public policy, at least in respect of a witness who has been ordered to attend a hearing by an Employment Judge. Under rule 10(6) of the current ET rules of procedure, if an Employment Judge makes a witness order and that person fails to attend the hearing without reasonable excuse, they would be liable on summary conviction to a fine.
See Lord Denning in Harmony Shipping Co SA v Davis and others  3 All ER 177 (CA) at 182:
If there was a contract by which a witness bound himself not to give evidence before the court on a matter on which the judge said he ought to give evidence, then I say that any such contract would be contrary to public policy and would not be enforced by the court. It is the primary duty of the courts to ascertain the truth: and, when a witness is subpoenaed, he must answer such questions as the court properly asks him. This duty is not to be taken away by some private arrangement or contract by him with one side or the other.
See further Fulham Football Club Ltd v Cabra Estates plc  BCC 863 (CA), where the court held at 873:
Clearly no convenant or undertaking can lawfully require a convenantor to give false evidence……Nor can a convenant or undertaking prevent a witness from attending to give evidence in response to a subpoena.
Of course, if there is any uncertainty as to the enforceability of any clauses within COT3s or compromise agreements, specific legal advice should be taken.
The Court of Justice of the European Union (“CJEU”) have handed down its decision in O’Brien v Ministry of Justice (2012) Case C‑393/10 in response to a reference from the United Kingdom’s Supreme Court.
Mr O’Brien, a former part-time Judge (Recorder), had originally presented an Employment Tribunal claim alleging that he had been discriminated against under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the Regulations”), on the ground that he was not entitled to a pro-rata judicial pension on retirement. Mr O’Brien claimed that as a fee paid part time Judge, he should be entitled to the same pension as full time Judges and salaried part time Judges.
Continue reading Part-time Judges and Pensions in the Court of Justice of the European Union – O’Brien v Ministry of Justice (2012) Case C-393/10
From April 2012, for employees to claim unfair dismissal they will, in most cases, need at least two years’ qualifying service with their employer. The Government are also considering whether to introduce fees for those who wish to present Employment Tribunal claims.
Most concerningly, we have recently learned from the Telegraph of a leaked report from Adrian Beecroft, a ‘venture capitalist and Conservative Party donor’, commissioned by the Prime Minister, in which Mr Beecroft cited ‘the terrible impact of the current unfair dismissal rules on the efficiency and hence competitiveness of our businesses, and on the effectiveness and cost of our public services’.
Continue reading Adrian Beecroft and Proposed Reform to the Law of Unfair Dismissal
The Supreme Court heard an appeal last week from the Court of Appeal’s decision in Autoclenz Ltd v Belcher  IRLR 70. The Supreme Court’s Judgment is likely to be an important decision regarding employment status and in particular the circumstances in which an Employment Tribunal or Court is entitled to find that a purported self-employment contract should be considered a ‘sham’.
Arguably the most important employment rights available to employees, including the right not to be not to be unfairly dismissed are granted only to those who are ‘employees’ under section 230 of the Employment Rights Act 1996. Under section 230(1) an employee is defined as ‘an individual who has entered into or works under … a contract of employment’. Under section 230(2) a ‘contract of employment’ is defined as ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing’. Continue reading Employment Status and Sham Agreements – Autoclenz Ltd v Belcher  IRLR 70 on appeal to the Supreme Court
In Vision Security Group Limited v Mr L Goodyear (2010) UKEAT/0307/10/JOJ an employer was not permitted to raise a new point on appeal that the employee’s compensation should be subject to a Polkey deduction. The Employment Appeal Tribunal (“EAT”) held, in any event, no Polkey deduction should have been made based on the Employment Tribunal’s other findings.
The Claimant in this matter had been employed by the Respondent as a Security Team Leader at a shopping mall in Blackburn. The Claimant was dismissed for gross misconduct following an incident on 5th May 2009 when he asked two individuals, who had previously been banned for the premises, to leave the mall. The Respondent dismissed the Claimant on the basis that it believed that the Claimant had taken one of the individuals out of sight of CCTV cameras to have a fight with him. The Claimant denied the allegation and insisted he acted merely to remove the individuals from the premises. Continue reading Polkey and New Points on Appeal – The case of Vision Security Group Limited v Mr L Goodyear (2010) UKEAT/0307/10/JOJ
The case of Mr L Morgan v The Welsh Rugby Union  UKEAT/0314/10/LA is the latest case dealing with the law where redundancies arise due to a re-organisation and there are new, different roles to be filled.
In Morgan the Claimant, a National Elite Coach Development Manager was involved in a re-organisation in early 2008. Mr Morgan’s post, together with a post held by one of Mr Morgan’s colleagues, Mr Schropfer were to disappear and the single post of National Coach Development was created. There were three applicants for the post which included Mr Morgan and Mr Schropfer. The Respondent considered that both Mr Morgan and Mr Schropfer were capable candidates but chose to appoint Mr Schropfer. Mr Morgan’s complaints in respect of the selection process included that the Respondent failed to compare the relative skills of Mr Morgan and Mr Schropfer, that the Respondent ignored its own job descriptions and person specification for the role, that the panel interviewing the candidates lacked a coaching expert, that Mr Schropfer was allowed more time than Mr Morgan to give a presentation which formed part of the interview process and that the Respondent failed to use the marking criteria laid down for the interview. Continue reading Redundancies, Re-organisations and New Roles – The case of Mr L Morgan v The Welsh Rugby Union  UKEAT/0314/10/LA
Some of you may remember my recent blog post on the case of Ms Carol Hill, the school “dinner lady” who had been sacked in September 2009 from Great Tey Primary School, Essex for the offence of “going to the press” and/or bringing the school into disrepute, after Ms Hill had found a seven year old pupil tied to a fence and being whipped with a skiing rope by another pupil in the Primary School playground.
The Employment Tribunal Remedy hearing was held today and reports have started to surface online in both the Gazette and on BBC News as to Ms Hill’s failure to obtain any compensation. The Press Association have reported that at today’s Remedy hearing, “members ruled that she would have been sacked, in any event, if correct procedures had been followed and she was therefore entitled to no compensation”. It appears clear that the Council were therefore successful in arguing that Ms Hill’s compensation should be reduced to nil under the Polkey principles.
It also appears from the Press Association’s article that Ms Hill had pursued an application for reinstatement, had abandoned this claim and had decided not to attend the Remedy hearing.
The Government’s consultation document entitled “Resolving workplace disputes – public consultation” was released on Thursday 27th January 2011. The website describes the consultation as “a significant first step in taking forward the Government’s review of employment law”.
Clearly changes in Governments and political ideologies can bring about major overhauls of the Employment Tribunal system. A case in point is the qualifying service required of an employee to lodge an Employment Tribunal claim for unfair dismissal, which is presently one year. When the statutory claim of unfair dismissal was introduced in 1971 the qualifying period was six months, which was initially increased to one year in 1980 by the Conservative government, further increased to two years in 1985 and ultimately reduced back to one year in 1999 following Labour’s return to power in 1997.
Continue reading Government Consultation and Employment Tribunal Reform “Resolving Workplace Disputes – Public Consultation”
The media reporting of Employment Tribunal cases, like any form of Court reporting, at times, can be inaccurate. This is due not only to the complex and confusing nature of Employment law but due to a variety of other factors, not least increased journalistic workloads. The manner in which Employment Tribunal cases are heard potentially also poses difficulties to journalists, particularly if witness statements are “taken as read” by the Tribunal, meaning the statements are not read out by the witnesses during the hearing but read in private by the Employment Tribunal. Even if journalists hear the evidence they may not have access to the documents.
This is noticeable from the case of Mrs Carol Hill, referred to in the press as the “Dinner Lady” who was dismissed from her job at Great Tey Primary School, Essex in September 2009 (I anticipate Mrs Hill’s job title was probably that of Midday Assistant or Lunchtime Supervisor). Continue reading The Reporting of Mrs Carol Hill -v- Essex County Council
Section 147 and Compromise Agreements
The Law Society’s practice note on Compromise Agreements dated 13th January 2011 provides useful assistance to solicitors who advise employees or employers in relation to compromise agreements that contain provisions relating to statutory claims for discrimination within the ambit of the Equality Act 2010 (“the Act”).
As stated in the Law Society’s practice note, Section 147 of the Act sets out the requirements that must be satisfied in order to properly settle claims under the Act by way of compromise agreements. Section 147 is intended to provide a safeguard for employees who may not otherwise understand the full implications of a compromise agreement and crucially, it stipulates that complainants must receive advice from an ‘independent adviser’ about the terms and effect of any compromise agreement. Continue reading COT3s as an alternative to Compromise Agreements – The Section 147 Headache