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Archive for October, 2016

Time limit for claims: proceedings by barrister against Bar Standards Board

Time limits for claims

General principles

Case  O’Connor v Bar Standards Board (2016) The Times, October 7, CA

Facts Ms B, a black practising barrister, was subjected to disciplinary proceedings by the Bar Standards Board (BSB). A disciplinary tribunal found five charges proved against her. She successfully appealed to the Visitors to the Inns of Court. She issued proceedings against the BSB on the basis that it had infringed her right to a fair trial by discriminating against her in grounds of race. The defence of the BSB was that the proceedings were time-barred in that they had been brought more than one year after the act complained of. At first instance, the defence succeeded. Ms B appealed to the Court of Appeal.

Decision      1. The appeal was dismissed.

  1. It was incumbent on a party, especially when that party was a legal professional, who wished the court to grant an extension of time to make that clear to the court and the other parties and to set out the grounds on which the extension was sought. It was not for the court to consider whether to extend time on its own initiative.

Wasted costs: order for £35,000: successful appeal to EAT

 

EMPLOYMENT TRIBUNALS

Wasted costs order

Case  Isteed v London Borough of Redbridge (2016) UKEAT/0442/14/DA

Facts A claimant complained of unfair dismissal and age discrimination. His solicitors lodged the claim out of time. Following a protracted series of hearings the ET dismissed the claims on the basis that it had no jurisdiction. The respondent applied for a £35,000 wasted costs order against the solicitors. The ET made the order and the solicitors appealed to the EAT.

Decision      1. The appeal was allowed.

  1. The ET had failed to adequately deal with causation and the justice of the order.
  2. Given the fluid and changing nature of the original application, the solicitors had not had proper or adequate notice of its basis.
  3. The comments and conduct of the ET judge gave rise to the appearance of bias.

Age discrimination: “you can’t teach an old dog new tricks”

AGE DISCRIMINATION

Context of remarks

Case  Khan v Adidas UK Ltd (2016) Eq Opp Rev 271:27, East London ET

Facts K, a Muslim, was employed by A as a sales assistant. Colleagues complained of his aggressive behaviour and inappropriate comments. During a disciplinary hearing, a colleague commented “you can’t treat an old dog new tricks”. K complained of age discrimination.

Decision      1. The complaint was dismissed.

  1. The “old dog” remark was not related to the claimant’s age in the context in which it was used. It was said to indicate that K would not be able to change his behaviour,

Sex discrimination: harassment: employer failing to prevent

 

SEX DISCRIMINATION

Harassment

Conduct clearly of sexual nature

Case  Samuda v London Borough of Hackney and Adams (2016) Eq Opp Rev 271:25, East London ET

Facts S was employed by LBH from 2006. In 2013 Mr E joined her tea. His behaviour was described as eccentric and weird. He told stories of his sexual exploits, brought women’s underwear to work and sat at his desk with his trousers undone. She complained about his behaviour and he was suspended. A disciplinary hearing found that his behaviour was inappropriate. The complaint of sexual harassment was not addressed and he was allowed to return to work. In 2015 S resigned and complained of unfair dismissal and sexual harassment.

Decision      1. The complaint was upheld.

  1. Mr E’s conduct was clearly unwanted and was for the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment.
  2. The employer had not taken all reasonable steps to prevent the harassment.
  3. S was awarded £12,000 compensation for injury to feelings. She had been considerably sensitised and upset, she had contemporaneously diarised and recorded events of harassment and had been off work with stress entirely attributable to her continuing issues.

 


Employment tribunals: time limits: factors to be take into account

EMPLOYMENT TRIBUNALS

Time limits for claims

Discretion of tribunal

Case  Rathakrishnan v Pizza Express Restaurants (2015) UKEAT/0073/15/DA

Facts R, a diabetic employed by P, was dismissed for breaches of food safety procedures. He complained of disability discrimination. This complaint was brought 17 days outside the three-month time limit. He applied for an extension of time on the basis that the claim was late because he feared being victimised because he was still employed by P. The ET refused to extend the time limit. R appealed to the EAT.

Decision      1. The appeal was allowed.

  1. A multi-factor approach was required in the ET exercising its discretion to extend time limits.
  2. In the present case, considerations of the balance of prejudice caused and the potential merits of the claim were relevant factors. The ET had not taken these factors into account.

Race discrimination: black Muslim employee overlooked for promotion

RACE DISCRIMINATION

Black employee overlooked for promotion

Case  Abubakar v Makro Self Service Wholesalers Ltd (2016) Eq Opp Rev 271:24, Watford ET

Facts A, a black Muslim man, applied for promotion to the role of butchery supervisor. He heard nothing following his application. Some months later a white man was appointed, who had no butchery experience and who left after a few weeks. The post was re-advertised and A applied again. He was unsuccessful. A white man was offered the post but did not accept it. Later, another white man was appointed butchery manager. A complained of direct race and religion or belief discrimination.

Decision      1. The complaint was upheld.

  1. The tribunal took account of the store manager’s attitude to A, including comments about whether customers felt comfortable with the claimant and were able to understand his African accent.
  2. The burden of proof had shifted to the employer, which had been unable to show that race played no part in the decision not to appoint A.

Disability discrimination: bipolar disorder: Watford ET decision

DISABILITY DISCRIMINATION

Refusal of employee to address process

Case  Cornelius v London Borough of Haringey (2016) Eq Opp Rev 271:23, Watford ET

Facts Ms C was employed as an SEN caseworker by LBH. She has bipolar disorder. She complained of harassment, direct discrimination and failure to make reasonable adjustments in relation to a number of perceived incidents.

Decision      1. The complaints were dismissed.

  1. Ms C had not engaged constructively with LBH to resolve her issues at work. She declined mediation, did not provide full consent and did not engage wholly with occupational health. She refused to properly engage in meeting with management to assess her workload.

3.Ms C’s failure to engage in a process to get assistance from occupational health, particularly in relation to complaints about her workload, meant that it was unknown whether the claimant was put at a substantial disadvantage or whether the employer had taken all reasonable steps.


Parasitism and the law-commodity

Parasitism

Wherever large amounts of money are to be made from the law, increasing levels of parasitism can be seen to develop around the law-commodity. Layer upon layer of non-lawyers skim percentages from the system.

For example, personal injury compensation claims are surrounded by claims farmers, insurance companies, television and press advertising companies. Other examples include:

  • Companies operating on the Internet which offer to help students to obtain pupillage. A customised application form is offered for £650 and customised interview answers for £800. The company states that its services are organised to maximise the chances of successfully navigating the application process. The top-end “Magic Service” costs £4500.
  • A QC selection consultancy which, for a considerable fee, offers coaching in the QC appointment process.
  • Employment and health and safety law also attracts layers of commercial activities aimed at extracting profits from employment tribunal claims. Consultancy companies, as well as providing unqualified representation, may offer insurance schemes for employers to “protect” them from the cost of employment tribunal proceedings. Such companies may offer free seminars as a means of pitching their insurance sales. Thus the organisations providing seminar facilities also profit from employment disputes.
  • Mediation services, offered as a cheaper alternative to litigation (again, money is the key).
  • Bar Select. This is an agency for clients wanting to instruct barristers online. It is described by its promoters as “an exciting new marketing channel”. Barristers are asked to sign up for £99 per month for a minimum of 12 months. This electronic introduction agency is, we are told, “supporting the process of change and modernisation designed to serve the interests of both clients and the legal profession”.

Disability discrimination: harassment and victimisation: covert surveillance

DISABILITY DISCRIMINATION

Harassment and victimisation

Covert surveillance

Case  Baker v Peninsula Business Services Ltd (2016) Eq Opp Rev 271:22, East London ET

Facts B suffered from dyslexia. He was employed by P as an advocate. The employer imposed covert surveillance of B on the basis of a suspicion that he was not devoting all his time to his work duties and that he was taking on private work. B complained of disability discrimination. He alleged that the surveillance amounted to harassment related to disability and victimisation arising from the protected acts of raising his disability.

Decision      1. The complaints were upheld.

  1. The decision to impose covert surveillance had been triggered by the employee claiming that he had a disability.
  2. Informing the employee of the surveillance in the context of disciplinary proceedings was harassment related to disability.
  3. The imposition of the surveillance was victimisation because it was in response to B raising his disability.

Employment tribunal jurisdiction: British Council employee working abroad

EMPLOYMENT TRIBUNALS

Jurisdiction

Sufficiently close connection

Case  Jeffery v The British Council (2016) Morning Star, October 14, EAT

Facts J, a UK citizen, was employed by BC abroad for many years. His contract stated that it was governed by British law, his salary was paid in sterling, he was entitled to membership of the Civil Service Pension Scheme and his employment was pensionable. His salary was subject to a notional deduction for UK income tax. The teaching centre for which he was responsible was closed. He resigned and brought a number of claims in the employment tribunal. The employer argued that the tribunal had no jurisdiction to hear the claims. The tribunal dismissed the claims on the basis that J’s place of employment was abroad. J appealed to the EAT.

Decision      1. The appeal was allowed.

  1. J had shown a sufficiently close connection with Great Britain and British law. There was a quite exceptional degree of connection.