In the case of Kutzel v Roche Products Ltd (2008), the Court of Appeal recently held that where an employee challenges the reason given by the employer as the real reason for their dismissal and the employee contends that another reason was the real reason, the fact that the employee contests what the real reason was and advances some other reason does not transfer the burden of proof to the employee. Instead, the burden of proof remains with the employer to prove that they dismissed the employee for the reason they gave.

The Employment Act 2002 introduced fixed conciliation periods which limited the period ACAS had to conciliate to a defined limited period. However, the Government has now indicated that it will be abolishing fixed conciliation periods. Accordingly, from the beginning of April 2008, ACAS will now be looking to conciliate in all cases throughout the duration of each case.

We are looking to recruit a newly qualified - 2 year pqe solicitor with at least a years experience of handling employment law matters both on the employee and employer side. Position comes with excellent salary and prospects and the vacancy is at our Wavertree, Liverpool office. Should you be interested in applying for the position, then please email your CV and a covering letter to info@theemploymentlawsolicitors.co.uk

In the recent Court of Appeal case of Richmond Adult Community College v McDougall (2008), the Court examined the question of when a disability condition, once symptoms have ceased, can be regarded as “likely to recur” to render it a condition classifiable as a disability for the purposes of the Disability Discrimination Act 1995 (DDA 1995). Where symptoms have ceased, an employee is not regarded as disabled for the purposes of the DDA 1995. However, under the DDA 1995, the employee would be regarded as disabled if the symptoms are “likely to recur”. But when can a condition be regarded as “likely to recur”? In the Richmond case, the Court held that matters which take place subsequently to the alleged act of discrimination (i.e. such as a recurrence of symptoms) cannot be taken into account when assessing the position. The assessment must instead be based upon the state of knowledge at the time of the alleged act of discrimination and if the assessment was that the condition was unlikely to recur, then the employee cannot be regarded as disabled even if they later suffer a recurrence.

In the case of Jackson v Computershare Investor Services (2007), the Court of Appeal recently held that The Transfer of Undertakings (Protection of Employment) Regulations (i.e. TUPE) does not bestow extra rights upon employees with the effect of enhancing their employment position. The Court stated that TUPE does no more than preserve existing employment rights.

The Employment Appeal Tribunal (EAT) recently held in the case of Homeserve v Dixon (2007) that when employers write to employees inviting them to a disciplinary meeting as per the statutory disciplinary and dismissal procedures, there is no requirement for the employer to expressly state in the letter that they are contemplating dismissal. The EAT ruled that potential dismissal was implied in such letters by virtue of the fact that the employee is being formally invited to a disciplinary hearing.

The year 2006/07 has witnessed a surge in claims according to the Tribunal Service. This is in large part due to a large rise in the number of equal pay and sex discrimination claims and the introduction of age discrimination legislation which came into force in October 2006. Overall, the number of claims rose from 115,039 to 132,577, an increase of 15%. Proportionately, unfair dismissal claims made up the largest number (33.56%), closely followed by equal pay claims (33.20%) which increased by 155% compared with 2005/06. In contrast, the number of appeals to the Employment Appeal Tribunal fell by 22%.

The Court of Appeal recently upheld the decision of the Employment Appeal Tribunal in the case of McAdie v Royal Bank of Scotland (2007). The Court held that even where an employer is responsible for an employee’s illness or injury, this fact does not preclude an employer from dismissing the employee fairly on the grounds of long term incapacity. Nevertheless, employees do still have the option of suing the employer in the civil courts for having caused their illness or injury. Moreover, where the injury or illness is regarded as a disability under the Disability Discrimination Act 1995, the employer is under an obligation to determine whether reasonable adjustments can be made which would facilitate the employees return to work. Only when it has been determined that no reasonable adjustments can be made, should the employer contemplate dismissal on the grounds of long term incapacity. Even then, following the McAdie ruling, the employer should “go the extra mile” to determine whether some means can be found to enable the employee to return to work.

The Employment Appeal Tribunal has recently held in the case of TGWU v Safeway Stores (2007) that an ET1 Claim Form can be amended to facilitate a new cause of action provided that it relies upon facts already pleaded, even if limitation has expired on the new cause of action.

ACAS recently announced that it will be extending its services to encompass some Employment Appeal Tribunal cases such as cases which may be referred back to the employment tribunal and those involving an ongoing employment relationship.

The Employment Appeal Tribunal (EAT) has recently held in the case of Blundell v St. Andrew's Catholic Primary School (2007) that in the situation where female employee's are entitled to return to the same job upon completion of their maternity leave, to constitute the same job, then the 3 key factors that determine whether it is the same job are the nature, capacity and place of the job. In the case itself, the Claimant was a primary school teacher and the job she returned to was as a primary school teacher, but with a different set of pupils. Accordingly, the EAT held that as she was returning as a primary school teacher, then for the purposes of the law she was returning to the same job.

In the recent case of Lawrence v HM Prison Service (2007), the Employment Appeal Tribunal (EAT) held that Claimant’s do not have to bring a grievance prior to lodging a tribunal claim where they allege discrimination which emanates from a dismissal (i.e. where the Claimant is bringing both an unfair dismissal claim and a discrimination claim, and the discrimination claim pertains to an allegation that the dismissal was discriminatory).

The EAT has also held in the case of London Borough of Hounslow v Miller (2007) that where Claimant’s lodge a tribunal claim in circumstances where they should first have sent a grievance letter to their employer and waited 28 days before lodging their claim with the tribunal, the claim must be rejected by the tribunal.

The High Court has held that the Government has failed to properly incorporate the provisions of the European Equal Treatment Directive into the Employment Equality (Sex Discrimination) Regulations 2005. In particular, it held that the harassment definition was too narrow (it does not include harassment from clients, for example) and there was a lack of clarity over maternity leave rights (for example, women’s rights re promotion during maternity leave). The Government has been ordered to report back to the Court on its proposals for rectifying the position.

In the recent case of James v Redcats (2007), the Employment Appeal Tribunal had to consider the question of what constitutes an employee as compared with a self-employed contractor. The most important question to ask, Justice Elias stated, was “whether the obligation for personal service is the dominant feature of the contractual relationship or not. If it is, then the" individual concerned is more likely to be an employee.

The Employment Appeal Tribunal has recently held in the case of Airbus UK v Webb (2007) that an employer is not entitled to take expired disciplinary warnings into account when determining whether to dismiss an employee. In the Judgment, Elias P stated that “a tribunal is obliged, and not merely entitled, to ignore expired warnings”.

Judgment was handed down in the case of Madarassy V Nomura (2007) by the Court of Appeal on the 26th January 2007 and it has serious implications for those wishing to bring discrimination claims.

The Sex Discrimination Act 1975 was amended in 2001 to improve the chances of bringing successful discrimination claims. In the case of Igen v Wong (2005), the Court held that under the 2001 amendments, once an employee has established facts which constitute a “prima Facie” case against their employer of having being discriminated against, the burden of proof transfers to the employer thereby placing the onus upon the employer to prove that there had been no discrimination. It was thought following the Igen case that when endeavouring to establish a “prima facie” case, the employee need not conclusively prove their entire case. All that was required, it was thought, was that the main facts of the case be proved, as once proved, then the employers conduct could very well amount to discrimination. Accordingly, it was considered only fair to transfer the burden of proof onto the employer to prove that their conduct was otherwise. However, in the Madarassy case, the Court of Appeal has now held that the employee does have to conclusively prove their entire case to establish a “prima facie” case. Hence, what has effectively happened is that the intended effect of the 2001 amendments have been overturned and there is now only what amounts to a nominal transfer of the burden of proof onto the employer. How could there be any kind of genuine transfer when the onus is firmly upon the employee to first conclusively prove their entire case.