42 days to appeal to the EAT run from the date when a tribunal decision is sent to the parties. That date is recorded on the decision. A tribunal must ensure that it is actually sent (ie posted) on that date - and that it can prove, if need be, that this has been the case.
Consultant surgeon Dr Tasneem's employment tribunal claims against Dudley NHS Trust were dismissed by the tribunal after a 12 day hearing. He appealed to the EAT but the Registrar rejected his appeal as having been served two days out of time. Time limits in the EAT are strictly enforced, as evidenced by numerous authorities over recent years. Dr Tasneem appealed against the Registrar's decision, basing his appeal on what he claimed must be an error in the detailed, 41 page, tribunal judgment.
The judgment, signed by both Employment Judge and member of administrative staff, stated that it had been "sent to the parties on 9 March 2009". On that basis, the 42 days within which to appeal to the EAT expired at 4pm on 20 April 2009. Dr Tasneem's appeal reached the EAT on 22 April 2009. However, he maintained that the judgment was, on balance of probabilities, not "sent" (ie handed over for delivery to the post office) until 11 March 2009 at the earliest: he did not receive it until 12 March. This timescale, of course, would make his appeal in time.
HHJ Serota noted that (i) Dr Tasneem had evidence of the times taken for letters to travel in the postal system in Birmingham (he had posted "test letters" to himself), and (ii) that having asked the tribunal for details of when the judgment was actually posted, Dr Tasneem had been told that the tribunal kept no such records and operated a system that arguably left room for doubt that a letter was actually sent on the date it was marked as being sent. He observed that Dr Tasneem had adopted a high-risk strategy by, in any event, leaving the sending of his appeal to the last minute: that said, the matter undoubtedly hinged on when the tribunal had sent out the judgment. The Employment Tribunal Rules (Rule 30(4)) make clear that the date the judgment is sent must be recorded - so the presumption is that the date on the document is correct. However that presumption can be rebutted. In this case Dr Tasneem had succeeded in doing this on the balance of probabilities.
His appeal would therefore be allowed to proceed to the sift stage.
Noting that this decision could give rise to similar, but unmeritorious, claims, HHJ Serota stated that employment tribunals must strictly follow the practice that the date of sending stamped on a decision is, indeed, the date on which it is put in the post-box. Furthermore, should such a case arise again, a tribunal should be able to produce evidence that this has been done.
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Mick Dooley, an official with the building trade union Ucatt, accused Balfour Beatty of using a secret blacklist to deny him work as a bricklayer on a building site. He brought a claim in the London Central employment tribunal. He has lost, reportedly on the basis that he was not an employee.
New regulations specifically outlawing the type of blacklist involved in this case came into effect a week ago, on 2nd March 2010 (The Employment Relations Act 1999 (Blacklist) Regulations 2010, SI 2010/493 - see emplaw web-updater of 2nd March 2010).
For background and other notes in these web-updaters please use the search tool provided and search on "blacklist" (subscribers only). For background notes on Mick Dooley's case see the Contract Journal of 14th October 2009 "Bricklayer wins Balfour blacklist compensation hearing" and the emplaw web-updater for 26th January 2010.
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An Employment Judge properly exercised his discretion to refuse to allow secretly recorded evidence - but the matter should have been left for consideration at the substantive hearing rather than being considered at a preliminary hearing.
Mr Williamson was a probationary police constable.
He was not considered suitable to progress to the position of full police constable. He suffered from clinically diagnosed depression and all parties accepted that he was a disabled person within the meaning of Disability Discrimination Act 1995 s.1. Supported by the Police Federation he sought, by way of reasonable adjustment, to move into a civilian role with the Greater Manchester Police Authority.
During the course of a capability procedure, a meeting was held in February 2009. Discussions took place when Mr Williamson and his Police Federation representative were out of the room. However Mr Williamson had left his mobile phone switched on (presumably he had left it in the room where the discussions were taking place) and recorded what was being said.
At a pre-hearing review the Police argued that the recording and/or the transcript should be excluded as inadmissible on the following grounds of:
(a) Public policy reason;
(b) Legal privilege;
(c) They were of little probative use and/or misleading due to the quality of the recording and consequently the incomplete transcript available.
At the PHR the employment judge ruled in favour of the Police. Neither the recording nor a transcript of it should be admitted in evidence at the substantive hearing. Mr Williamson appealed against that ruling. He wanted the recording and/or the transcript to be admitted at the substantive hearing in order to support his allegation of disability discriminatory conduct.
Mr Williamson has lost.
The EAT ruled that the decision was within the employment judge's discretion and that in any event the decision accorded with previous authority (the EAT judgment in Chairman and Governors of Amwell View School v Dogherty [2007] ICR 135).
HHJ Birtles also made the point that it was not generally appropriate for this type of question to be taken at a pre-hearing review: "In general, disputes about admissibility of evidence in civil proceedings are best resolved by the judge at the substantive hearing rather than at a separate preliminary hearing."
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The House of Lords (in committee) discusses the Damages (Asbestos-related Conditions) Bill.
The House of Lords ruled in Johnston v NEI International Combustion Ltd [2007] UKHL 39 that asymptomatic pleural plaques (an asbestos-related condition) do not give rise to a cause of action because they do not signify damage or injury that is sufficiently material to found a claim for damages in tort.
The Bill, if enacted, will effectively reverse this House of Lords judgment. If the Bill is enacted employees who have negligently been exposed to asbestos and diagnosed with pleural plaques, would be able to pursue claims for compensation from their employer (or its insurer) through the courts. The Bill provides that someone suffering from pleural thickening or asbestosis would not have to prove that it was causing impairment of their physical condition to claim damages on the basis of personal injury.
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The Council has formally adopted the new Directive on parental leave (16945/09 + 5922/1/10 REV 1 ), which will replace Directive 96/34 currently in force.
The replacement Directive makes the following changes:
Member States have two years to implement the new rules into domestic legislation.
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Lillian Ladele has been refused leave to appeal to the Supreme Court against the Court of Appeal's decision that she was not discriminated against for her religious beliefs.
As previously noted (see for example the emplaw web-updater of 12 December 2009) the Islington registrar had refused to officiate at civil partnership services, stating that same sex relationships were against Christian teachings. Having resigned from her job, she won an employment tribunal claim for religious discrimination. However, this decision was overturned by the Employment Appeal Tribunal which ruled she was not discriminated against for her beliefs but for not performing her job fully. Ms Ladele took her case to the Court of Appeal but it upheld the EAT's decision.
Having been refused permission to appeal against the Court of Appeal's judgment, Ms Ladele has said she is considering taking her case to the European Court of Human Rights.
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Up to 270,000 civil and public servants from across the UK have been taking strike action, organised by the Public and Commercial Services Union (PCS), in response to proposed changes to the civil service compensation scheme (see emplaw web-updater of 4.2.10) which, the union argues, will "see staff robbed of up to a third of their entitlements and see loyal civil and public servants lose tens of thousands of pounds if they are forced out of a job."
Commenting on the dispute, Mark Serwotka, PCS general secretary, said "The government is tearing up the contracts of low paid civil and public servants whilst it claims it can do nothing about bankers’ bonuses because of contractual obligations. The government need to recognise that slashing entitlements and cutting jobs on the cheap will damage public services and reach an agreement that protects existing members’ entitlements."
Despite government estimates that only 81,000 union members were striking, the PCS asserted that "well over 200,000 stayed away from work, on the first day of the two day strike."
See also this article in the Guardian of 9th March 2010 on how staff at Department for Work and Pensions claim they were 'told to imitate answering machines' on the second day of the strike, and see this comment in the Guardian "Striking civil servants have been misled."
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