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December 2010 Updates

Causation in whistleblowing cases

In Fecitt & ors v NHS Manchester, the Claimants had made various protected disclosures about one of their colleagues. This caused their relationships with several of their colleagues to suffer. As a result of this, the Claimants? working lives were disrupted, with two of them being transferred to another office by managers and one having all of their working hours withdrawn, effectively ending their employment.

The Employment Appeal Tribunal decided that, since the poor treatment of the Claimants began after they had made their protected disclosures, there must be a link between the two.

Going forwards, there will be a general presumption that detriments suffered by a whistleblower (after they have blown the whistle) will be as a direct result of their whistleblowing status. This means that it will be up to the employer to overturn that general presumption and demonstrate that, in a given case, the adverse treatment was not linked to the protected disclosures made.

Strike outs

In Balls v Downham Market School, the Claimant was employed at a school, as was his wife. She pleaded guilty to stealing from it. The police did not bring any charges against the Claimant but the school dismissed him as it suspected that he had been involved with the crimes committed by his wife.

Both the Claimant and his wife claimed unfair dismissal. Their claims were heard together by the Tribunal, despite the fact that the Claimant did not want this. Both cases were struck out. The Claimant?s appeal was allowed because the Tribunal had treated the claims in the same way, even though their circumstances were different. It had allowed the details of the wife's case to cloud its view of the Claimant's case.

The Employment Appeal Tribunal stated that the Tribunal should have looked carefully at the files before making a decision to strike out both claims. If it had done this, it would have realised that the Claimant did not want the claims to be heard together and that the facts of the case were different.

Minimum wage and "on call" time

The Employment Appeal Tribunal has decided, in South Manchester Abbeyfield Society v Hopkins & Ors, that employees should not be paid for all the hours that they spend "on call" (i.e. where they are required to remain contactable in case they need to be called upon to work, whether or not they do in fact carry any out).

The employees were employed as housekeepers in sheltered accommodation. They were required to spend time "on call". At all times when they were "on call", they were given the use of private accommodation.

The Employment Appeal Tribunal decided that the employees could only claim for any hours that they were awake in case they were required to work.

The case was sent back to the Employment Tribunal for a new panel to decide how long the employees spent awake and ready to work so that they could be paid for those (but not for time spent on call whilst asleep).

Reading witness statements aloud in Tribunals

The Employment Appeal Tribunal has issued guidance on the practice of reading witness statements aloud in Tribunals. As it is guidance only, it does not constitute a mandatory approach. In summary, the Employment Appeal Tribunal has said:

In many cases, reading witness statements aloud does not help the Tribunal or the parties and therefore wastes time.

Sometimes it might be helpful to read a particular statement or parts of a statement aloud if it requires further detail or clarification. This could be useful for technical passages in statements, or statements written by unrepresented litigants.

If both parties are represented, the lawyers should be able to agree whether or not to accept statements "as read" (i.e. where the Tribunal reads them itself "behind closed doors" without the witnesses having to read them aloud).

It is ultimately a decision for the Tribunal as to whether or not a witness statement should be read aloud.

Bonuses and pay in lieu of notice

The Court of Appeal has decided, in Locke v Candy & Candy, that where a contractual bonus clause stipulated that an employee had to be "employed by the company in order to receive the bonus", the employee was not entitled to any bonus when he was dismissed and lawfully paid in lieu of notice 10 days before the bonus became due.

Annual compensation limit increases

From 1st February 2011, the maximum amount of compensation that can be awarded for a successful unfair dismissal claim will be £68,400. It is currently £65,300.

The new maximum for a week's pay (for, for example, statutory redundancy payments and unfair dismissal basic awards) will be £400.

This means that the standard maximum unfair dismissal award payable will be £80,400 (although the cap is, of course, removed in the case of a whistleblower).


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SRA number 404293