November 2010 Updates

Proposal to increase unfair dismissal qualifying period to two years

The Government is considering increasing the qualifying period for being able to bring an unfair dismissal claim from one year to two years. It is not clear when it intends to make a final decision, but there is likely to be a consultation period first.

Redundancy selection

The Employment Appeal Tribunal has decided, in County Print v Page, that in order to have a fair selection process when making redundancies, the employee must be given an explanation for their scoring. They must also have an opportunity to comment on their score and to challenge it. This is particularly important when subjective selection criteria are used.

Parties not entitled to insist on Tribunal region

The Employment Appeal Tribunal has decided in Faleye v UKME that there is no right for a Claimant to have their claim heard in the same region as their place of work. Transfers to another region can be made for any reason, as long as it seems reasonable to Regional Employment Judges. They can consider any relevant expertise of the different Tribunals but must also be sure that a transfer will not cause any injustice (for example, if the Tribunal office is a long distance from where one or more of the parties is based).

Compromise Agreements under the Equality Act

It seems that there has been a drafting error in the wording of the Equality Act 2010. If the section on compromise agreements is taken literally, it seems that it is impossible for a solicitor to witness a compromise agreement. It says that the advice must be from an independent advisor who is not acting for a person who is party to the complaint (i.e. the employee). This would mean that any solicitor who the employee instructs to advise them would be acting for them, and would not be able to witness the agreement. The Law Society has asked the Government to look into the problem urgently.

Fixed share partner is not an "employee"

In Tiffin v Lester Aldridge LLP, the Claimant was a fixed share partner within a limited liability partnership. There was a large difference between what the Claimant earned and what the equity partners earned. There was also a difference in the level of profits he received, his financial contribution to the business, his level of involvement in the management of the partnership and his voting rights. Despite these differences, the Employment Appeal Tribunal decided that the Claimant was still a partner and not an employee.

The Tribunal stated that there is no statutory provision or authority which states that, for a person to be a partner, they must have a certain minimum number, or certain minimum type, of rights to vote or to participate in management decisions. Nor are there any statutory rules which specify that the share of profit of a person or their contribution must reach a certain level before they can be regarded as a partner.

Cost awards in spurious age discrimination claims

In Berry v Recruitment Revolution and ors, the Employment Appeal Tribunal has made it clear that Claimants who make claims of age discrimination in respect of job adverts need to be cautious. If the Claimant had no intention of applying for the job, and was purely making a claim in the hope of receiving compensation, then they will be at risk of having to contribute towards the other side's legal fees.

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