Sarah Young from Sheffield Branch was the winner in our special prize draw at Congress, in Nottingham. Our thanks to Paul Kenny for taking time from his immensely busy week to make the draw for us. Thanks too, to Tim Roache, Regional Secretary for joining us on our stand for the presentation by Frances McCarthy, Managing Partner. Meeting the hundreds of delegates and visitors to Congress was not only a pleasure but, meant the week flew by for Frances, Jane Radcliffe, Head of our York office and the Pattinson & Brewer team. (more…)

There is a real and serious need for additional resources and funding within the ambulance services sector, coupled with a significant lack of awareness amongst the public as to how our ambulance services operate.

I have a number of cases involving emergency call handlers who have either failed or delayed to send out an ambulance to patients with life threatening injuries.  After realising the mother of one of my current clients did not know that when she made her 999 call, she was speaking to a non-medically trained person, I wondered just how many know that the call handlers follow a scripted system which relies heavily on trigger words and algorithms.

My growing concerns follow the tragic case of Clayton Barker who died from an asthma attack when the 999 emergency operator thought the emergency was less serious than it was. The inquest is ongoing and the conclusion might be that an ambulance could have been sent 13 minutes earlier if the correct answer had been put into the scripted system.  If Clayton’s family were told that the ambulance was not classed as a red emergency, perhaps they would have had the chance to push for Clayton to be seen by a paramedic. More importantly, if the call handler had been clinically trained s/he would have recognised that Clayton required a red code ambulance.

The London Ambulance Service NHS Trust rely on a Medical Priority Dispatch System which other ambulance services consider lacks the sensitivity to pick up each type of significant or life threatening injury.  It is my understanding that the decision whether to move a certain type of injury to a red code depends on how that change will affect the risk of reaching those in other life threatening codes.  Of course, such policy considerations come down to a lack of resources but, as a clinical negligence solicitor I am concerned by the increased number of cases involving ambulance delays.  Another one has been reported in the papers this week.

We as a community heavily rely on our 999 and ambulance services. We trust that if an emergency arises our family and loved ones will receive the emergency treatment they desperately need. Unfortunately, all to often it is a matter of life or death and every minute counts so, should the public be given more information relating to the systems used by ambulances, so that if in a situation of emergency they can have some control over the treatment they receive?

Many times there is nothing more depressing than hindsight.  I’ve heard my clients say, unfortunately, all too often “ had I known I would have fought harder for an ambulance to come out”

Alisha Patel, Medical Negligence Solicitor

 

In the age of smartphones it is relatively easy for an employee to make covert recordings of conversations during meetings. Employees may feel that they want to safeguard their position in preparation for a Tribunal hearing by recording conversations. 

In Vaughn v London Borough of Lewisham & ors the EAT stated that the practice is ‘very distasteful’.  The court, however, considers relevance of the material and the public policy interest in maintaining the privacy of deliberations in internal grievances and disciplinary processes into account when deciding on admissibility.

A Claimant will have to show that the material is relevant to the dispute and should apply for admission of the material at an early stage of the proceedings.

In Chairman & Governors of Amwell View School v Dogherty the EAT was not happy to include the covert recordings because the recordings included parts of the meeting in which the teacher was absent when she was asked to leave the room so the panel could deliberate and make a decision.

The EAT agreed that the recordings that took place in the presence of the teacher could be used as evidence. The recordings during the private deliberations were not allowed as evidence as the disciplinary panel had an expectation of privacy. The EAT noted that a failure to maintain respect of privacy in this context would have the consequences of inhibiting open discussion between those engaged in adjudicating and would be a matter of public policy and give rise to satellite litigation.

In a recent case of Punjab National Bank (International) Ltd & ors v Gosain the EAT ruled that covert recordings in private deliberations could be used as evidence.  In Punjab the Claimant was pursuing claims of sexual harassment, sex discrimination and constructive unfair dismissal.  The covert recordings during the private deliberations according to the EAT included a number of relevant statements.  In Punjab the remarks made during the private sections of the hearing did not relate to the matters under consideration by the panel.  The comments made by the manager about the Claimant during the private deliberations were found to fall outside of a public policy interest of maintaining confidentiality.

Claimants should not assume that covert recordings will be admissible.  If there is a strong argument, however, regarding their relevance and the remarks are outside the matters that would form part of private deliberations then, they may be found to be admissible.

Felicia Epstein, Employment Solicitor

Felicia Epstein , Employment solicitor is based in Pattinson & Brewer’s London office and her successful work and commitment to representing individuals has been independently recognised by the Lawyer Monthly magazine. (more…)

Unite members providing talking therapy services have been successful in their unfair dismissal and failure to consult claims against their employers, and had their employed status recognised. The employers are third party providers who tender for the services through the NHS PCT.

Proposals by the PCT that the provision of talking therapy services could be developed and enhanced into one integrated service began in 2011. The consultation process prompted counsellors who were considered self-employed to begin to question and consider their own employment status.
(more…)

Litigators across the country breathed a collective sigh of relief as the 73rd update to the Civil Procedure Rules came into force on 5th June 2013.  Coupled with the recent decision by the Court of Appeal in the case of Chartwell Estate Agents Limited v Fergies Properties SA & Hyam Lehrer [2014] EWCA Civ 506 there now appears to be some respite from the perceived harshness of Jackson reforms that were introduced on 1st April 2013.

Since April 2013, the courts have adopted a near ‘zero-tolerance’ approach when it comes to enforcing compliance with court orders, rules and practice directions.  The leading case involved the  solicitors acting for the MP Andrew Mitchell in his case against the Sun newspaper.  In that case, the solicitors failed to file their costs budget within the required time.  The sanction for this failure (set out in CPR 3.14) – applied by the High Court and upheld in the Court of Appeal – means Mr Mitchell will be unable to claim his legal costs if the claim succeeds and will be only recover the court fees.  Mr Mitchell’s costs budget is reported to have been £506,425 – a very substantial loss which has presumably been borne by his solicitors.

The recent changes to the CPR and the case of Chartwell would not have changed the outcome in Mr Mitchell’s case, but they do soften some of the knock-on effects of the judgment.

There are concerns that the Jackson reforms have stopped co-operation between parties and in some cases led to cheap point scoring on procedural issues (see Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA [2014] EWHC 398).  The amendment to CPR 3.8 to include rule 3.8(4) allows the parties (by prior written agreement) to agree 28 day extensions to rules, practice directions and court orders, provided hearing dates are not put at risk and the court has not ordered otherwise.  It is already known colloquially as the ‘buffer-rule’ and should bring back common sense in dealings between the parties.

The decision in Chartwell shows that the courts are willing to take account of factors other than those listed in CPR 3.9 when considering whether to grant relief from sanctions where there has been a failure to comply with a rule, practice direction or court order.  In that case, both parties had failed to exchange witness evidence in accordance with a court order. Importantly, this was not considered trivial but relief from sanctions was nonetheless granted. The judgment is nuanced but importantly both parties were in default, the trial date could be maintained and it was considered that refusing relief would grant the defendant a windfall.  It should be  emphasised that the decision is fact specific and unlikely to be of general assistance to parties seeking relief from sanctions.

The amendment to CPR 3.8 and the decision in Chartwell show the high-water mark of the judiciary’s zero-tolerance approach has been reached. Compliance with court rules and orders, however, remains essential.

Jack Waller, Personal Injury Solicitor

A number of employment related measures were announced in the recent Queen’s speech, including what was described as a ‘crack down’ on costly Tribunal delays, abuses of the National Minimum Wage (NMW) and zero-hours contracts.

It is proposed that the Small Business, Enterprise and Employment Bill will contain the following measures:

  • Tackling NMW abuse and crack down on the abuse of zero-hour contracts. A Liberal Democrat press release suggests that the measures to deal with NMW abuse will be the previously announced change to legislation – employers who fail to pay NMW will face financial penalties of up to £20,000 per employee as opposed to £20,000 in total, which is currently the case.
  • Crack down on costly Employment Tribunal delays (no detail was given as to the Government’s intentions in this regard).
  • Making some childcare regulations more flexible to meet the needs of working families.
  • Stopping highly paid public sector employees keeping redundancy payments when they come back to the same part of the public sector within a short period of time.

When the Bills are published they will appear on the “Bills before Parliament page for the 2014/2015 session”. www.parliament.uk 

Clare Walsh, Employment Solictor

 

Summer’s approaching, which is a popular time for many to use a substantial portion of their annual leave. It therefore seems timely to discuss a recent decision from the Court of Justice of the European Union (“CJEU”) regarding holiday pay.

Should commission be taken into account when calculating the worker’s statutory holiday pay? This was the question asked in Lock v British Gas Trading Company.

Mr Lock has been employed by British Gas as an Internal Energy Sales Consultant since 2010, his task being to persuade business customers to buy his employer’s energy products. His remuneration consisted of two main components: his basic salary and commission. His commission, on average, amounted to approximately 60% of his monthly pay and was calculated on the basis of the sales he made. It was not paid at the time of the sales but several weeks after conclusion of the contract between British Gas and the customer.

Between 19 December 2011 and 3 January 2012, Mr Lock took annual leave and was paid his basic salary as well as commission earned over the previous weeks. Having not worked over the period of annual leave, Mr Lock did not make any new sales and subsequently failed to generate any commission. His salary during the months following his annual leave was therefore adversely affected and he sought payment for this by bringing a claim in the Employment Tribunal.

Under these circumstances, the Employment Tribunal asked the CJEU whether the commission which a worker would have earned during his annual leave must be taken into account in the calculation of his holiday pay and, if so, how the sum payable to the worker must be calculated.

The CJEU responded with a preliminary ruling on 22 May 2014, stating that during annual leave, a worker must receive his “normal remuneration”. It further stated: “The purpose of holiday pay is to put the worker, during that period of rest, in a situation which is, as regards his salary, comparable to periods of work.”

The CJEU had taken note that British Gas had conceded at the hearing that the worker does not generate any commission during the period they take annual leave.  The CJEU felt that the adverse financial impact this generates was likely to deter the worker from actually taking annual leave.  This was held to be contrary to the objective pursued by the Working Time Directive (WTD), which provides that workers have the right to at least four weeks’ paid annual leave.  The WTD is implemented into UK law by the Working Time Regulations (WTR) which sets out that most workers in the UK have the right to 5.6 weeks paid annual leave.  Now, the CJEU is saying that this leave should include an element to cover commission a worker would normally earn.

The CJEU did not clarify how the holiday should be calculated and referred the matter back to the Employment Tribunal for this purpose.  Commentators have speculated that the likely approach will be to average a previous month’s commission to determine an appropriate holiday pay.

This ruling extends the principle already established in the case of Williams v British Airways, that remuneration paid in respect of annual leave should be “normal remuneration” received by the worker.

This case is important, particularly for individuals who are paid commission intrinsically linked to the actual work they are carrying out.  There may even be the potential to claim lost payments in previous years, although I suspect this will depend heavily on how the Tribunal determines this pay should be calculated.  For instance, it could be that the commission is simply adjusted so that its payment is spread over the whole year, allowing for periods of annual leave.  Alternatively, it could potentially lead to a minor windfall for some.  Employers will no doubt be reviewing their commission policies to establish which additional payments should be included in their holiday pay and whether the payment of commission will need to be varied to take account of this ruling.

On this basis, the Employment Tribunal’s response will be of major interest.

Damian Brooks, Employment Solicitor

 

 

Elizabeth Stephenson, Employment Solicitor

I was lecturing a group of law students from the US this week, and unsurprisingly perhaps, it was clear that we in the UK enjoy better employment rights than the States generally in terms of things like the level of the National Minimum Wage, 5.6 weeks holiday per year, rights not to work more than a 48 hour working week and to have 11 consecutive hours rest between shifts. We also congratulate ourselves on the detailed legislation and body of case law we have in relation to discrimination law; how progressive we are.

But, with the introduction of tribunal fees, and the shocking drop of 79% in the number of tribunal claims being brought, I wonder if there is any point in these rights if nobody can afford to enforce them? Given that it now costs you £250 to issue an unfair dismissal or discrimination claim and a further £950 if that claim goes to hearing these rights and principles are out of most people’s price range. If your employer deducted £100 from your wages would you pay the £160 it would cost you to lodge a claim about it? And the further £230 if that claim went to hearing?

The system is becoming inaccessible to those who need it the most.

The prohibitively high level of fees and the complicated fee remission system is deterring people from what was already a daunting process. The tribunals seem quieter than ever. Have employers magically stopped breaching their obligations towards their employees? Or, do they now realise they can get away with more? These rights are all but meaningless unless we have the ability to enforce them. The smart people will join a trade union who could support them in those claims and help to redress the imbalance of power that exists and that will only become more significant, unless we act.

If you have been deterred from bringing an employment tribunal claim because of tribunal fees please support the TUC’s campaign for a change in the law on tribunal fees and tell them your story.

I often hear wronged employees saying they want to help stop what happened to them happening to others . This could be your chance to try.