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May 2011 Updates

Negligent (non-)references

The High Court has decided, in McKie v Swindon College, that an employer may be liable to pay a former employee damages for negligent misstatement when corresponding with a potential new employer.

It is well established that a former may make such a claim in connection with the provision of a reference which their former employer has negligently prepared. This principle was extended to a statement made by a former employer which was not a reference.

The Claimant was an exemplary employee of the College. He received a fine reference when he left. He was later employed by a University. His new job involved contact with his old employer. The new Human Relations Director, on behalf of the College, caused an e-mail about the Claimant to be sent to the University in damaging terms. On the facts, this was "fallacious and untrue" and its preparation "sloppy and slapdash". It cost the Claimant his job at the University.

Although this was not a reference case, the Court decided that a duty of care still applied and held the former employer liable.

Agency workers

The Department for Business, Innovation and Skills has published its guidance on the Agency Workers Regulations 2010, which come into force on 1 October 2011.

The Regulations state that agency workers (i.e. temporary staff) will have the same rights to pay, benefits, rest periods and holidays as ordinary permanent workers as long as the temporary worker has worked for the employer for 12 consecutive weeks.

Redundancy scoring and consultation

The Employment Appeal Tribunal has decided, in Dabson v David Cover & Sons, that, when looking at the fairness of selection for redundancy, the marks awarded in the selection exercise should only be investigated in exceptional circumstances such as bias or obvious mistake.

There had also been an accidental failure to consult with the Claimant individually on redundancy. As the only complaint was of unfair dismissal, the only matter to be determined was that the selection was fair in general terms and was applied reasonably in the case of the employee (Buchanan v Tilcon Ltd [1983] IRLR 417). The consultation was found to be adequate for these purposes and failure to consult did not, of itself, render the dismissal unfair.

Unfair dismissal time limits

The Employment Appeal Tribunal has decided, in John Lewis Partnership v Charman, that it may not be "reasonably practicable" for an unfair dismissal claim to be presented within the time limit if an employee is unaware of the time limit prior to receiving the outcome of an internal appeal against dismissal and presents the claim within a reasonable period after that.

The Claimant was dismissed on 13 March 2010. He had, under the three month time limit, until 12 June 2010 to present an unfair dismissal claim. The Claimant, who was not aware of time limits, attended an appeal hearing on 24 May 2010. The Claimant was sent a letter dated 28 June 2010 dismissing his appeal, which he only received in mid-July 2010, having been away. The Claimant presented his claim on 21 July 2010.

The Employment Appeal Tribunal upheld the Employment Tribunal's decision that it had not been reasonably practicable for the Claimant to present a claim before the determination of his internal appeal and that he had presented his claim within a reasonable period thereafter. It consequently allowed it to be heard.

Adequacy of Tribunal reasons

The Employment Appeal Tribunal has decided, in Mak v Waygood Gallery, that an Employment Tribunal must give adequate reasons for its decision.

The Claimant, arguing constructive dismissal, complained about both the manner in which the Respondent replied to her grievance, which she said was negative and aggressive, and the length of time it took it to provide a substantive response (four months). However, the Tribunal did not assess whether that conduct amounted to a repudiatory breach and, if not, why not, simply asserting that there was "no last straw". It stated at a different part of the decision that, "this is addressed later". it was not.

The matter was remitted to a freshly constituted Tribunal.

Wasted costs arising from poorly prepared CMD

The Employment Appeal Tribunal has decided, in Wilsons Solicitors v Johnson, that an Employment Judge may make a wasted costs order against a party's representative under rule 48 of the Employment Tribunal rules arising from the conduct of a telephone Case Management Discussion (CMD).

The solicitors in this case acted for two employees who raised a wide variety of claims in their ET1.

The pleadings were obscure and lacked detail. Amended particulars were filed before the CMD but they were "decidedly sketchy". The Employment Judge at the CMD stated they were ?all over the place?. Nor were they clarified at the CMD itself. The Tribunal decided that the Respondents had incurred wasted costs as a result of the Claimants' solicitors' unreasonable and negligent acts and omissions and that the CMD (the purpose of which had been to achieve a final definition of the issues) had been abortive. These deficiencies were held to be the fault of the solicitors and not because of the instructions of their clients. Rather, they were failures of analysis and accurate formulation.

The Judge agreed and dismissed the solicitors' appeal.


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SRA number 404293