Eyres v Atkinsons Kitchens & Bedrooms Ltd
Michael Eyres was an employee of Atkinsons Kitchens and Bedrooms. Late one evening, he crashed his van while returning to Bradford on the M1, having worked a 19-hour day and driven hundreds of miles. Eyres, who was not wearing a seatbelt, suffered a serious spinal injury in the accident, which left him tetraplegic.
Prior to the accident, while his managing director Craig Atkinson was asleep as a passenger, Eyres read and sent a number of text messages on his mobile phone while driving at high speed. The accident was caused by Eyres having to brake suddenly and losing control of the vehicle.
Eyres had claimed that his employer was liable in negligence and/or breach of statutory duty because it had caused or permitted him to drive when he was too tired having worked excessively long hours without a proper break.
Decision
The High Court found that it was Eyres' not paying attention through using his mobile phone that caused the accident, rather than his tiredness, and entered judgment in the defendant's favour. Eyres appealed.
The Court of Appeal overturned the High Court ruling, concluding that on a balance of probabilities the accident was caused by Eyres falling asleep, rather than using his mobile phone.
The Court of Appeal found that his employer, which encouraged a long-hours culture, had been negligent by requiring him to drive in such circumstances and doing nothing to guard against the risk of injury.
It was also directed that Eyres' damages should be reduced by 33% due to his contributory negligence in not wearing a seat belt and in driving while tired and liable to fall asleep.
Key implications
All employers should be alert to health and safety and working time requirements. However, employers of staff who engage in higher-risk activities (such as long-distance driving, working at height, or operating heavy or dangerous machinery) must take care to ensure they comply at all times with their duty of care to their employees. Casually asking an employee who has worked long hours, and is clearly suffering from fatigue, if they are "OK to carry on" with the relevant activity will not usually be sufficient.
The Eyres case is also a reminder that while risks taken by the employee may reduce damages through contributory negligence, they may not be enough to ensure that the employer escapes liability. Having exemptions or obtaining employee opt-outs from working time legislation will not prevent liability for health and safety or negligence claims.
The Corporate Manslaughter and Homicide Bill will bring such risks into even sharper focus.
Employers should ensure their health and safety policies adequately address risks that are relevant to their workforce, and that they:
Comply with all relevant health and safety and working time legislation for the industry in question.
Make it clear that a long working hours culture that puts employees' health and safety at risk is positively discouraged.
Ensure that working schedules and, where relevant, journey times are realistic and safe, with provision for rest breaks.
Put checks in place to ensure these schedules are adhered to.
Provide practical measures to ensure that employee health and safety is not placed at risk - for example, ensuring an overnight stay rather than requiring completion of a long road journey at the end of a working day.
By Adam Fuge, partner, Matthew Arnold & Baldwin
HR : http://www.personneltoday.com
Showing posts with label CASE LAW. Show all posts
Showing posts with label CASE LAW. Show all posts
Saturday, July 28, 2007
What is the 'same job' following maternity leave?
Blundell v St Andrews Catholic Primary School
When is a job not the same job? That was the question considered in Blundell v St Andrews Catholic Primary School, where for the first time the Employment Appeal Tribunal (EAT) considered the criteria to be used when assessing what exactly amounts to the 'same job' under the Maternity and Parental Leave Regulations 1999.
In the regulations, a woman returning from ordinary maternity leave has the right to "return to the same job, in which she was employed before her absence".
Background
Mrs Blundell was a primary school teacher. The practice in her school was for teachers to teach a particular class every two years and then rotate - to give them a breadth of experience.
At the time of commencing maternity leave in January 2004, she was in her second year of teaching the class 'reception yellow'. On her return to work, at the start of the following academic year, she was offered the choice of a floating role or teaching year two. She chose the latter. However, she claimed that this was a more stressful role, and not the same job that she had left prior to her maternity leave.
Decision
The EAT disagreed, and found her role to be that of a primary school teacher, and not specifically defined as a teacher of the reception yellow class.
An employer has to consider three things when deciding upon the 'same job': the 'nature' of the job, as provided by the contract of employment the 'capacity' in which the employee is employed, which is a factual label to describe the employee's function more than merely their status and the 'place' at which the employee works.
The issues of capacity and place are not dictated solely by the contract, but are to be decided by a tribunal on the particular facts. For example, where a mobility clause allowing for an alternative location exists in the contract of employment, this would not necessarily entitle an employer to move an employee on her return from maternity leave.
The EAT ruled that where there is variation to the role in practice, the employer is not obliged to "freeze time at the precise moment that maternity leave is taken, but may have regard to the normal range within which variation has previously occurred". It concluded that teaching year two was not outside the normal range of variability that she could reasonably have expected, and was therefore the 'same job'.
As her role was regularly rotated, the EAT found that the nature of her job was to teach at a primary school, her capacity was as a class teacher rather than a reception yellow teacher, and her place of work was at the school.
Key implications
Although of little comfort to Blundell, the EAT was keen to stress the purpose of the regulations, which is to ensure that women who return from maternity leave experience as little disruption as reasonably possible at an already stressful time for them.
While the EAT was sympathetic to the intentions of the regulations, the positive message for employers is that in practice, as in this case, it is likely that a generic job description and less rigid working practices will go a long way in affording them the flexibility that they may require.
The guidelines set out by the EAT are useful. However, nothing can be taken for granted and, where there is uncertainty, each case will still rest on its own facts.
Stefan Green is a lawyer in the employment and benefits team at Allen & Overy
HR LINK : http://www.personneltoday.com/
When is a job not the same job? That was the question considered in Blundell v St Andrews Catholic Primary School, where for the first time the Employment Appeal Tribunal (EAT) considered the criteria to be used when assessing what exactly amounts to the 'same job' under the Maternity and Parental Leave Regulations 1999.
In the regulations, a woman returning from ordinary maternity leave has the right to "return to the same job, in which she was employed before her absence".
Background
Mrs Blundell was a primary school teacher. The practice in her school was for teachers to teach a particular class every two years and then rotate - to give them a breadth of experience.
At the time of commencing maternity leave in January 2004, she was in her second year of teaching the class 'reception yellow'. On her return to work, at the start of the following academic year, she was offered the choice of a floating role or teaching year two. She chose the latter. However, she claimed that this was a more stressful role, and not the same job that she had left prior to her maternity leave.
Decision
The EAT disagreed, and found her role to be that of a primary school teacher, and not specifically defined as a teacher of the reception yellow class.
An employer has to consider three things when deciding upon the 'same job': the 'nature' of the job, as provided by the contract of employment the 'capacity' in which the employee is employed, which is a factual label to describe the employee's function more than merely their status and the 'place' at which the employee works.
The issues of capacity and place are not dictated solely by the contract, but are to be decided by a tribunal on the particular facts. For example, where a mobility clause allowing for an alternative location exists in the contract of employment, this would not necessarily entitle an employer to move an employee on her return from maternity leave.
The EAT ruled that where there is variation to the role in practice, the employer is not obliged to "freeze time at the precise moment that maternity leave is taken, but may have regard to the normal range within which variation has previously occurred". It concluded that teaching year two was not outside the normal range of variability that she could reasonably have expected, and was therefore the 'same job'.
As her role was regularly rotated, the EAT found that the nature of her job was to teach at a primary school, her capacity was as a class teacher rather than a reception yellow teacher, and her place of work was at the school.
Key implications
Although of little comfort to Blundell, the EAT was keen to stress the purpose of the regulations, which is to ensure that women who return from maternity leave experience as little disruption as reasonably possible at an already stressful time for them.
While the EAT was sympathetic to the intentions of the regulations, the positive message for employers is that in practice, as in this case, it is likely that a generic job description and less rigid working practices will go a long way in affording them the flexibility that they may require.
The guidelines set out by the EAT are useful. However, nothing can be taken for granted and, where there is uncertainty, each case will still rest on its own facts.
Stefan Green is a lawyer in the employment and benefits team at Allen & Overy
HR LINK : http://www.personneltoday.com/
Case of the week: When can the 'without prejudice' rule be set aside?
In Brunel University & Schwartz v Webster & Vaseghi, the Court of Appeal analysed the 'without prejudice' rule and circumstances in which the rule can be set aside.
The without prejudice privilege attaches to evidence of settlement negotiations aimed at resolving disputes, and prevents such evidence being referred to in proceedings. However, privilege will fall away where both parties waive it, and can also be withdrawn where it would otherwise conceal unlawful behaviour.
Facts
Vaseghi and Webster brought claims of race discrimination against Brunel University. The without prejudice discussions to settle the disputes were unsuccessful and tribunal hearings went ahead. Subsequently, in a university newsletter, the vice-chancellor complained about the cost of defending the claims, and alluded to the fact that the claims had been accompanied by "unwarranted demands for money". Vaseghi and Webster brought victimisation grievances and tribunal claims on the basis of these comments. An independent panel set up by the university heard the grievances, including evidence about the without prejudice discussions.
The tribunal pleadings and bundle also contained various references to the settlement discussions. However, when Vaseghi and Webster disclosed a statement by a solicitor about these discussions, the university's lawyers objected on the basis that the evidence was without prejudice.
Decision
The Court of Appeal said that privilege had been waived on the basis that both parties:
Gave or called evidence of the without prejudice discussions at the independent panel review (an unusual forum as it was adversarial in nature and a formal trial)
Referred to the without prejudice discussions in their respective pleadings.
However, the court said that, in normal cases where without prejudice discussions are mentioned at internal grievance meetings, privilege would not be waived.
While the court declined to comment on whether there was an exception to the without prejudice rule in cases of discrimination to prevent the rule from concealing the "evil" of discrimination, it did say that it could understand that it may be difficult to prove discrimination if the general without prejudice rule applies fully in every case.
Key implications
Be aware that without prejudice protection will not apply in all cases and is not absolute. To protect the without prejudice status of communications:
Consider whether there is a dispute before speaking on a without prejudice basis. The rule only applies where there is a dispute between the parties and the discussions are a genuine attempt to end the dispute.
Label settlement documents 'without prejudice', although remember that a document will not become privileged merely because of its label.
Only refer to without prejudice communications during internal grievance proceedings where absolutely necessary, and make it clear that privilege is not being waived. Where independent panels are set up to determine grievances, beware that adducing evidence of without prejudice communications is likely to waive privilege.
Do not refer to without prejudice documents or discussions in pleadings, witness statements or any other tribunal documents.
The privilege may not cover communications that disclose evidence of discrimination. There remains a risk that the without prejudice rule will be set aside to allow a claimant to prove discrimination.
By Judith Harris, professional support lawyer, Addleshaw Goddard
HR LINK : http://www.personneltoday.com/
The without prejudice privilege attaches to evidence of settlement negotiations aimed at resolving disputes, and prevents such evidence being referred to in proceedings. However, privilege will fall away where both parties waive it, and can also be withdrawn where it would otherwise conceal unlawful behaviour.
Facts
Vaseghi and Webster brought claims of race discrimination against Brunel University. The without prejudice discussions to settle the disputes were unsuccessful and tribunal hearings went ahead. Subsequently, in a university newsletter, the vice-chancellor complained about the cost of defending the claims, and alluded to the fact that the claims had been accompanied by "unwarranted demands for money". Vaseghi and Webster brought victimisation grievances and tribunal claims on the basis of these comments. An independent panel set up by the university heard the grievances, including evidence about the without prejudice discussions.
The tribunal pleadings and bundle also contained various references to the settlement discussions. However, when Vaseghi and Webster disclosed a statement by a solicitor about these discussions, the university's lawyers objected on the basis that the evidence was without prejudice.
Decision
The Court of Appeal said that privilege had been waived on the basis that both parties:
Gave or called evidence of the without prejudice discussions at the independent panel review (an unusual forum as it was adversarial in nature and a formal trial)
Referred to the without prejudice discussions in their respective pleadings.
However, the court said that, in normal cases where without prejudice discussions are mentioned at internal grievance meetings, privilege would not be waived.
While the court declined to comment on whether there was an exception to the without prejudice rule in cases of discrimination to prevent the rule from concealing the "evil" of discrimination, it did say that it could understand that it may be difficult to prove discrimination if the general without prejudice rule applies fully in every case.
Key implications
Be aware that without prejudice protection will not apply in all cases and is not absolute. To protect the without prejudice status of communications:
Consider whether there is a dispute before speaking on a without prejudice basis. The rule only applies where there is a dispute between the parties and the discussions are a genuine attempt to end the dispute.
Label settlement documents 'without prejudice', although remember that a document will not become privileged merely because of its label.
Only refer to without prejudice communications during internal grievance proceedings where absolutely necessary, and make it clear that privilege is not being waived. Where independent panels are set up to determine grievances, beware that adducing evidence of without prejudice communications is likely to waive privilege.
Do not refer to without prejudice documents or discussions in pleadings, witness statements or any other tribunal documents.
The privilege may not cover communications that disclose evidence of discrimination. There remains a risk that the without prejudice rule will be set aside to allow a claimant to prove discrimination.
By Judith Harris, professional support lawyer, Addleshaw Goddard
HR LINK : http://www.personneltoday.com/
Case of the week: 'Without prejudice' discussions
Framlington Group Ltd and Axa Framlington Group Ltd v Barnetson (Court of Appeal)
Hot on the heels of Brunel University & Schwartz v Webster & Vaseghi (see case of the week, Personnel Today, 12 June), which dealt with the circumstances in which the 'without prejudice' rule can be set aside, comes a second Court of Appeal case - Framlington Group Ltd and Axa Framlington Group Ltd v Barnetson.
Written or oral communications made in a genuine attempt to resolve a dispute will generally be protected by the without prejudice rule. This means that those communications cannot be used as evidence in court proceedings in relation to that dispute.
It is well established that where settlement negotiations occur in the context of litigation, or threatened litigation, those negotiations will be covered by the without prejudice rule. However, in the 2004 case of BNP Paribas v Ms A Mezzotero the EAT restricted the operation of the rule and said that it would only apply where litigation was likely and not before that point.
Framlington follows on from Mezzotero, and considers, for the first time, whether discussions that took place months before litigation started, or was even likely, will be covered by the rule.
Facts
In early 2005, Mr Barnetson started employment as chief operating officer at Framlington Group Ltd. He was told that his orally agreed terms and conditions would be confirmed in writing at a later date. However, when Barnetson pursued this written confirmation, a difference of opinion arose as to the terms that had been agreed. Discussions around his terms took place until the end of October 2005, at which point Framlington told Barnetson it intended to dismiss him at the end of the year.
Further negotiations ensued, during which a compromise agreement was produced and Barnetson set out the terms on which he would be prepared to settle. These discussions broke down and on 20 December 2005, Barnetson was given notice that his employment would terminate.
Barnetson brought proceedings for damages for wrongful dismissal in April 2006. Framlington alleged that certain parts of Barnetson's witness statement in support of his claim should not be allowed because they related to without prejudice discussions that had taken place between the end of October and 20 December 2005. The High Court judge rejected this argument. Framlington appealed.
Decision
The Court of Appeal held that, once Framlington had told Barnetson it intended to dismiss him, the discussions that followed were without prejudice and could not, therefore, be used as evidence in the court proceedings.
There was a public policy consideration underlying the without prejudice rule namely, to encourage people to settle their disputes without resorting to litigation. In light of this aim, it was not appropriate to set a time limit prior to litigation before which any discussions would not be protected. Rather, courts should determine the point at which, during the course of negotiations, the parties contemplated, or might reasonably have contemplated, litigation if they could not reach agreement.
Key implications
This case clarifies the circumstances in which discussions with staff will be covered by the without prejudice rule:
There is no need for litigation to be threatened or underway for negotiations to be protected. If it is clear that the parties understood that litigation might result if the negotiations failed, then such discussions are likely to be protected.
The discussions in this case were only protected from the point at which Barnetson was told of his employer's intention to dismiss him. Discussions during internal grievances are unlikely to be protected.
By Laura Green, assistant solicitor, Lovells' Employment Group
HR Link : http://www.personneltoday.com
Hot on the heels of Brunel University & Schwartz v Webster & Vaseghi (see case of the week, Personnel Today, 12 June), which dealt with the circumstances in which the 'without prejudice' rule can be set aside, comes a second Court of Appeal case - Framlington Group Ltd and Axa Framlington Group Ltd v Barnetson.
Written or oral communications made in a genuine attempt to resolve a dispute will generally be protected by the without prejudice rule. This means that those communications cannot be used as evidence in court proceedings in relation to that dispute.
It is well established that where settlement negotiations occur in the context of litigation, or threatened litigation, those negotiations will be covered by the without prejudice rule. However, in the 2004 case of BNP Paribas v Ms A Mezzotero the EAT restricted the operation of the rule and said that it would only apply where litigation was likely and not before that point.
Framlington follows on from Mezzotero, and considers, for the first time, whether discussions that took place months before litigation started, or was even likely, will be covered by the rule.
Facts
In early 2005, Mr Barnetson started employment as chief operating officer at Framlington Group Ltd. He was told that his orally agreed terms and conditions would be confirmed in writing at a later date. However, when Barnetson pursued this written confirmation, a difference of opinion arose as to the terms that had been agreed. Discussions around his terms took place until the end of October 2005, at which point Framlington told Barnetson it intended to dismiss him at the end of the year.
Further negotiations ensued, during which a compromise agreement was produced and Barnetson set out the terms on which he would be prepared to settle. These discussions broke down and on 20 December 2005, Barnetson was given notice that his employment would terminate.
Barnetson brought proceedings for damages for wrongful dismissal in April 2006. Framlington alleged that certain parts of Barnetson's witness statement in support of his claim should not be allowed because they related to without prejudice discussions that had taken place between the end of October and 20 December 2005. The High Court judge rejected this argument. Framlington appealed.
Decision
The Court of Appeal held that, once Framlington had told Barnetson it intended to dismiss him, the discussions that followed were without prejudice and could not, therefore, be used as evidence in the court proceedings.
There was a public policy consideration underlying the without prejudice rule namely, to encourage people to settle their disputes without resorting to litigation. In light of this aim, it was not appropriate to set a time limit prior to litigation before which any discussions would not be protected. Rather, courts should determine the point at which, during the course of negotiations, the parties contemplated, or might reasonably have contemplated, litigation if they could not reach agreement.
Key implications
This case clarifies the circumstances in which discussions with staff will be covered by the without prejudice rule:
There is no need for litigation to be threatened or underway for negotiations to be protected. If it is clear that the parties understood that litigation might result if the negotiations failed, then such discussions are likely to be protected.
The discussions in this case were only protected from the point at which Barnetson was told of his employer's intention to dismiss him. Discussions during internal grievances are unlikely to be protected.
By Laura Green, assistant solicitor, Lovells' Employment Group
HR Link : http://www.personneltoday.com
Case of the week: Banking on the bonus doesn't pay
Ridgway v JP Morgan Chase Bank National Association, High Court
What is the extent of an employer's discretion when making bonus decisions? We already know that discretion is not completely unfettered, and that employers must not act in a way that is irrational or perverse when making bonus decisions. But does that authorise an employer to award no bonus whatsoever?
Background
In Ridgway v JP Morgan, the High Court decided that the bank was entitled to award a 'nil' bonus to a trader who had spent most of the bonus year on sabbatical.
Mr Ridgway, who headed up the bank's options desk, took an unpaid sabbatical starting in April 2003. One of the terms of the sabbatical agreement was that Ridgway would continue to be eligible for a discretionary bonus for the year ending December 2003. At the end of the bonus year, the bank awarded Ridgway a nil bonus.
On his return from sabbatical, Ridgway's previous job was unavailable, and he and the bank failed to agree on an alternative role for him. Ridgway resigned and claimed constructive dismissal. He claimed compensation for his bonus on the basis that the bonus decision was irrational and perverse, as well as compensation for stock awards that he lost as a result of resigning.
Decision
The High Court dismissed all of Ridgway's claims. In relation to the bonus claim, it followed the guidelines for the award of discretionary bonuses set out in the recent Court of Appeal decision of Commerzbank v Keen. In Commerzbank, the Court of Appeal said the hurdle is set very high for an employee to show that a bonus decision is irrational or perverse. However, the Court of Appeal also said an employer must identify the reason for a bonus award and the decision maker.
The High Court said the bank had been entitled to award Ridgway a nil bonus after taking into account the fact that he had been on sabbatical for most of the bonus year. The bank had also taken into account the fact that Ridgway had been making a loss when he went on sabbatical, that his 'add-on' contribution was very limited, and that there were no other factors to justify awarding a bonus.
The court endorsed Commerzbank and said the task of proving irrationality or perversity in the exercise of the bank's discretion to award a bonus is a "daunting one".
Key implications
Following the Commerzbank and JP Morgan decisions, courts will be reluctant to intervene in bonus decisions except in exceptional cases. However, bonus decisions are subject to challenge where the decision appears irrational and/or where the decision-making process is not transparent. Employers should be mindful of the following when making discretionary bonus decisions:
Properly and fully consider whether to award a discretionary bonus and, if so, the amount of the award.
Ensure the decision-making process is transparent and provide reasons why the bonus was assessed at the level it was so that the employee has an understanding as to how the figure was reached.
Tell the employee who made the bonus decision.
Review bonus wording to ensure it provides the level of discretion required (subject, of course, to the legal limitations set out above).
By Judith Harris, professional support lawyer, Addleshaw Goddard
Employers' Law
Each month, Employers' Law magazine outlines the latest legal rulings and what these mean for you. Click here to subscribe, or call 01444 445566.
Article by : http://www.personneltoday.com
What is the extent of an employer's discretion when making bonus decisions? We already know that discretion is not completely unfettered, and that employers must not act in a way that is irrational or perverse when making bonus decisions. But does that authorise an employer to award no bonus whatsoever?
Background
In Ridgway v JP Morgan, the High Court decided that the bank was entitled to award a 'nil' bonus to a trader who had spent most of the bonus year on sabbatical.
Mr Ridgway, who headed up the bank's options desk, took an unpaid sabbatical starting in April 2003. One of the terms of the sabbatical agreement was that Ridgway would continue to be eligible for a discretionary bonus for the year ending December 2003. At the end of the bonus year, the bank awarded Ridgway a nil bonus.
On his return from sabbatical, Ridgway's previous job was unavailable, and he and the bank failed to agree on an alternative role for him. Ridgway resigned and claimed constructive dismissal. He claimed compensation for his bonus on the basis that the bonus decision was irrational and perverse, as well as compensation for stock awards that he lost as a result of resigning.
Decision
The High Court dismissed all of Ridgway's claims. In relation to the bonus claim, it followed the guidelines for the award of discretionary bonuses set out in the recent Court of Appeal decision of Commerzbank v Keen. In Commerzbank, the Court of Appeal said the hurdle is set very high for an employee to show that a bonus decision is irrational or perverse. However, the Court of Appeal also said an employer must identify the reason for a bonus award and the decision maker.
The High Court said the bank had been entitled to award Ridgway a nil bonus after taking into account the fact that he had been on sabbatical for most of the bonus year. The bank had also taken into account the fact that Ridgway had been making a loss when he went on sabbatical, that his 'add-on' contribution was very limited, and that there were no other factors to justify awarding a bonus.
The court endorsed Commerzbank and said the task of proving irrationality or perversity in the exercise of the bank's discretion to award a bonus is a "daunting one".
Key implications
Following the Commerzbank and JP Morgan decisions, courts will be reluctant to intervene in bonus decisions except in exceptional cases. However, bonus decisions are subject to challenge where the decision appears irrational and/or where the decision-making process is not transparent. Employers should be mindful of the following when making discretionary bonus decisions:
Properly and fully consider whether to award a discretionary bonus and, if so, the amount of the award.
Ensure the decision-making process is transparent and provide reasons why the bonus was assessed at the level it was so that the employee has an understanding as to how the figure was reached.
Tell the employee who made the bonus decision.
Review bonus wording to ensure it provides the level of discretion required (subject, of course, to the legal limitations set out above).
By Judith Harris, professional support lawyer, Addleshaw Goddard
Employers' Law
Each month, Employers' Law magazine outlines the latest legal rulings and what these mean for you. Click here to subscribe, or call 01444 445566.
Article by : http://www.personneltoday.com
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