Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or indeed about any employment law related matter please do not hesitate to get in touch.

ADMISSIBILITY OF CLANDESTINE RECORDINGS

Employees sometimes make clandestine audio recordings of disciplinary and grievance hearings. The Employment Appeal Tribunal has recently been asked to consider whether such recordings can be used in evidence in Employment Tribunal proceedings. In the case in question, the employee, a teaching assistant, had recorded not only the parts of the disciplinary and appeal hearings at which she had been present but also the private deliberations of the school governors on the respective panels.

The EAT was not prepared to overturn the Employment Tribunal’s decision that the recordings of the parts of the hearing where the employee was present were admissible. It rejected the school’s argument that allowing the recordings to be used breached the governors’ right to respect for private and family life under Article 8 of the European Convention on Human Rights. It also found that there was no valid objection on public policy grounds as it was always intended that there would be a formal record of the proceedings in written form.

However, the EAT found that there were valid public policy objections to allowing the recordings of the panel’s private deliberations to be used in evidence on the basis that to do so could inhibit full and frank discussion when deciding disciplinary and grievance issues. As a result, these parts of the recordings were ruled inadmissible. Nevertheless, the EAT stressed that decisions as to the admissibility of such recordings would need to be decided on a case by case basis and where, for example, in a discrimination case, secret recordings of a panel’s deliberations contained important evidence of discrimination, the balance of competing interests might fall in favour of allowing such evidence to be used in proceedings.

[Chairman and Governors of Amwell View School v Dogherty, EAT (0243/06)]

STATUTORY DISMISSAL AND DISCIPLINARY PROCEDURE

Step 3 of the statutory dismissal and disciplinary procedure is the appeal. If the employee informs the employer that he or she wishes to appeal the employee must be invited to an appeal hearing. If the employer fails to complete the statutory procedure and the employee has more than a year of service his or her dismissal will be rendered automatically unfair.

A case heard at the Employment Appeal Tribunal concerned whether or not a company was entitled to refuse to allow an appeal hearing to take place because its employee had not complied with the company’s contractual disciplinary procedure. Following his dismissal for misconduct, the employee wrote to the company confirming that he wished to appeal. The company’s contractual procedure stated that an employee wishing to appeal must set out the grounds for that appeal in writing within 5 days. In his letter, the employee asked to be given more time to set out his grounds. When, some weeks later, the employee had still not confirmed his grounds of appeal, the company wrote to him informing him that his appeal would not now be heard.

The Employment Appeal Tribunal upheld the finding that this amounted to a breach of the statutory procedure and so the dismissal was automatically unfair. Under the legislation, the obligation to hold an appeal hearing was triggered by the employee informing the company of his intention to appeal and it was not possible to alter this via the contractual procedure.

Although it usually assists the decision making process if employees provide written grounds of appeal, in circumstances where the statutory dismissal and disciplinary procedures apply, it would be unwise to make the provision of these a precondition for an appeal hearing to be held.

[Masterfoods v Wilson, EAT (0202/06)]

EMPLOYMENT STATUS

The issue of determining whether or not someone is an employee for the purposes of employment rights legislation is something which continues to generate case law. It is well established that what an individual’s contract says will not necessarily decide this question.

In a recent case, the Employment Appeal Tribunal considered the question of when it is permissible to look “outside the four corners” of the contract to determine employment status. It found that one important factor is the parties’ intentions. If it is clear that the parties intended that the written contract should contain all the terms of their agreement then it will not usually be permissible to look beyond this to determine the question of employment status. If, however, if it is found that this was not the parties’ intention, the EAT was of the view that evidence of matters beyond the written contract, such as oral exchanges and conduct, could be considered.

[MOD Dental Services v Kettle, EAT (0308/06)]

COMPROMISE AGREEMENTS

There are a number of statutory requirements which must be complied with before a written agreement can constitute a valid waiver of an employee’s statutory employment claims. One of these requirements is that the agreement must state that the requirements under the particular legislation relevant to the claim or claims being waived have been complied with.

In a claim considered by the Employment Appeal Tribunal, the claimant had signed an agreement purporting to compromise ‘all claims past or future arising out of her termination of employment’ including ‘discrimination on grounds of race, sex and/or disability'. She then attempted to pursue claims for, amongst other things, race and sex discrimination. The agreement complied with the statutory requirements regarding the receipt of independent advice by the claimant. However, it did not state that the requirements for compromise agreements set out in the Sex Discrimination Act and the Race Relations Act had been satisfied. The EAT held that this rendered the agreement ineffective as far as the claimant’s sex and race discrimination claims were concerned.

Even if the appropriate declarations had been included, the EAT found that the claimant would still have been entitled to pursue her discrimination claims, as these concerned matters which occurred during the course of her employment, whereas the agreement only settled claims arising out of termination.

Employers should always obtain specialist advice to ensure that a compromise agreement they wish to offer to an employee will be a valid waiver of his or her claims. The statutory requirements need to be interpreted in the light of the body of case law as it develops regarding these type of agreements.

[Palihakkara v British Telecommunication plc, EAT (0185-86/06)]

CONFIDENTIAL INFORMATION

A case heard by the Court of Appeal considered whether or not it was reasonable to order a company to pay the legal costs incurred by another company in connection with an employee’s misuse of confidential information.

The employee resigned from company A and shortly afterwards joined a direct competitor, company B. Company A suspected that she had taken its confidential information to use in her new role. It wrote to the employee seeking a written undertaking that she would return the information by close of business two days later. It also wrote to company B seeking an undertaking, by the same deadline, that it would not seek to assist the employee in any breach of her obligations to company A.

Eight days later, after receiving no satisfactory response, company A issued court proceedings against company B and the employee.

In deciding whether or not to award costs against company B, the Court of Appeal had to decide whether or not company A had issued proceedings prematurely. The Court decided that company B’s initial response to company A’s correspondence had been inadequate and company A was therefore entitled to initiate proceedings when it did. Costs were therefore awarded against company B as well as the employee.

The courts recognise that companies need to act very quickly to limit damage if they have evidence which indicates that confidential information is being exploited. Organisations should seek legal advice as a matter of urgency, either if they are considering pursuing a claim for misuse of confidential information or if such a claim is threatened against them.

[Fox Gregory Ltd v Spinks and anor, Court of Appeal, 2006 EWCA Civ 1544]

MATERNITY LEAVE AND PAY

The Work and Families Act 2006 will introduce a number of changes to the rules regarding maternity benefits for mothers whose babies are due on or after 1 April 2007. The main changes are as follows:

The length of service requirement for additional maternity leave will be removed. This means that all pregnant employees will be entitled to take the maximum 52 weeks’ maternity leave.
The minimum notice required from mothers who wish to take less than 52 weeks’ maternity leave and return to work early will be doubled from 28 days to eight weeks.
The statutory maternity pay period will increase from 26 weeks to 39 weeks. Statutory maternity pay will be payable at 90% of normal weekly earnings for the first six weeks followed by the basic rate (or 90% of normal weekly earnings if this is less than the basic rate) for the remaining 33 weeks.
‘Keeping in touch’ days will be introduced to allow employees on maternity leave to work for up to 10 days during the leave period without losing statutory maternity pay or bringing the leave to an end. Any such work must be by agreement between the parties and so cannot be required of the employee.
A clarification of the law to confirm that employers are permitted to make reasonable contact with employees who are absent on maternity leave.

INCREASE IN TRIBUNAL LIMITS

The annual increase in the limits on certain Employment Tribunal awards took effect on 1 February 2007. The limit on a week’s pay, for the purposes of calculating unfair dismissal basic awards and redundancy payments, increased from £290 to £310. The maximum compensatory award for unfair dismissal increased from £58,400 to £60,600.

Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
Putney,
London
SW15 6AB

Tel: 020 8789 9111
www.russell-cooke.co.uk

This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

The Employment Team at Russell-Cook
Anthony Sakrouge (Partner) – 020 8394 6504 sakrougea@russell-cooke.co.uk
Alex Bearman (Solicitor) – 020 8394 6524 bearmana@russell-cooke.co.uk
Dominic Tomkins (Solicitor) – 020 8394 6525 tomkinsd@russell-cooke.co.uk

Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483 klauberj@russell-cooke.co.uk
Shivaji Shiva (Partner) – 020 8394 6486 shivas@russell-cooke.co.uk
Dora Costas (Solicitor) – 020 8394 6498 costasd@russell-cooke.co.uk

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