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Timing and permission to amend an ET1

In the recent case of Galilee v Commissioner of Police for the Metropolis the EAT held that the doctrine of ‘relation back’, whereby amendments take effect from the date of the original document which it amended, does not apply in the tribunal.

The case concerned a claim for unfair dismissal and disability discrimination. The Claimant later sought to amend the ET1 to include additional accounts of disability discrimination which occurred prior to the dismissal.

In the first instance the tribunal found that these additional accounts had been made out of time and was not persuaded that time should be extended on a ‘just and equitable’ basis. Further, the tribunal was concerned that the Respondent would be deprived of its jurisdictional defence should permission be granted to amend the ET1.

The Claimant appealed the tribunal’s decision and the appeal was allowed by the EAT. The EAT held that the doctrine of ‘relation back’ does not apply in the tribunal and the amended claim takes effect from the date when permission is granted as opposed to the date on which the original claim was brought.

Therefore, granting permission to the Claimant to amend the ET1 does not deprive the Respondent of the right to argue that the additional accounts are made out of time. Further, it is not necessary for a tribunal to determine if a claim is out of time when deciding to grant permission to amend the ET1, other than in clear cases. The tribunal can grant permission to amend subject to the time point being decided at a later stage.

Employers should be aware that employees may be able to amend ET1s to add additional claims even where such claims are made out of time. Tribunals are not required to determine the time point when such applications are made but a timebar argument can be made at a later date.

Timing and permission to amend an ET1

EAT finds you cannot cherry pick from without prejudice conversations

The Employment Appeal Tribunal (EAT), in the recent case of Graham v. Agilitas IT Solutions Ltd. (Agilitas), ruled that an employer cannot rely on parts of a without prejudice conversation held in accordance with s.111A of the Employment Rights Act 1996 (ERA) and/or the "common law" without prejudice rule, whilst at the same time seeking to use the without prejudice rule as a shield in reference to that same conversation. S.111A of the ERA permits discussions between an employer and an employee with a view to terminating employment on agreed terms to remain confidential and inadmissible in proceedings before a tribunal for unfair dismissal.
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EAT finds you cannot cherry pick from without prejudice conversations

Social media: the opportunities and the risks

Find out more about the latest social media/employment law cross-over case law, and the importance of having a social media policy in place, in my latest article for People Management.

http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/10/23/what-does-case-law-say-about-social-media.aspx

Social media: the opportunities and the risks

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

Assuming the best…

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Assuming the best…

Social Media: The Employer Strikes Back

The recent case of Plant v API Microelectronics Ltd should serve as a reminder to employees of the potential dangers of using social media to post comments about their employer, and to employers of the importance of having in place a clear social media policy.

In that case, API introduced a policy which prohibited unacceptable social media activity, including posting comments that could damage the reputation of the company. Following an announcement of a proposed relocation, Mrs Plant unwittingly posted a comment about suing her employer on Facebook, not realising that the page was linked to her employer’s technology.

API instigated a disciplinary process, ultimately leading to Mrs Plant’s dismissal. Mrs Plant claimed unfair dismissal in the employment tribunal, relying on her otherwise clean disciplinary record and long length of service. The Tribunal held that, whilst the decision may seem harsh, the dismissal was still within the band of reasonable responses by the employer and, as such, ultimately fair.

Social Media: The Employer Strikes Back

Increase in limits

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

  • Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
  • Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
  • Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
  • Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489
Increase in limits

Perry’s Motor Sales Ltd v. Edwards

This case involved a Claimant that had been dismissed for gross misconduct taken together with an existing final written warning. The misconduct (on both occasions) was in relation to invoicing issues with the latter incident involving the Claimant making a false submission. The Employment Tribunal (ET) found that the Claimant’s dismissal was unfair, but that the Claimant had contributed to his dismissal by 50 per cent and therefore ordered the compensation be reduced accordingly.

However, the Employment Appeal Tribunal (EAT) has found that the ET had erred in its finding of unfair dismissal because it:

  • determined an issue that the Claimant had not raised in his claim form, namely the validity of the earlier warning;
  • had applied the wrong test – it asked whether the warning was within the range of reasonable responses rather than whether the warning had been issued because of a hidden agenda, was manifestly inappropriate and/or was issued without grounds; and
  • substituted its own view for that of the reasonable employer.

The case has now been remitted to a different tribunal for rehearing.

Despite the ET’s incorrect approach, this is a good reminder for employers to ensure that the reason(s) for any warning is clearly documented so there cannot be any concern that a warning is issued without clear grounds.

Perry’s Motor Sales Ltd v. Edwards

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016