Employee who breached trust and confidence could not rely on employer’s later breach
The claimant worked as director of content for RDF Media. He gave notice of termination of his employment. In breach of contract, he disclosed confidential information to one of RDF’s competitors for whom he was proposing to work. His employment contract contained various restrictive covenants which would apply after the termination of his employment.
After the claimant was put on garden leave, RDF issued a press release with very negative comments about him. The claimant claimed constructive dismissal alleging that the press release was not only defamatory but a breach of trust and confidence. He regarded it as a public attempt to destroy his reputation. He therefore argued that the garden leave and restrictive covenants in his contract could not be enforced.
The High Court held that the press release was indeed a breach of trust and confidence by RDF. However, in this case, the Court went on to say that the claimant could not rely on the breach to bring a claim for constructive dismissal because he had first acted in breach of trust and confidence by disclosing confidential information to a competitor. This was a repudiatory breach so he could not rely on a subsequent repudiatory breach by his employer as entitling him to treat the contract as terminated.
- RDF Media Group plc and another v. Clements (2007) EWHC 2892 (QB)
Age discrimination: injury to feelings award for being “too young”
Compensation has now been determined for an employee who was found to have been discriminated against by her employer who thought she was too young to do the job. She had insufficient service to complain of unfair dismissal.
As the claimant immediately found alternative employment, compensation was limited to an injury to feelings award.
The claimant was awarded £1,500 [in the lowest band set out in Vento v. The Chief Constable of West Yorkshire Police (2003)] on the basis that there was evidence that she had been upset by the comments about her youth at the time they were made, but no evidence that they had made her ill or that she had suffered any emotional or financial setback as a consequence. The tribunal also applied an uplift of 10% on the award as the employer had failed to follow the statutory dismissal procedure.
- Thomas v. Eight Members Club and Killip (2007)
Reasonable practicability of submitting unfair dismissal claims
Mr Bevan was dismissed by the Royal Bank of Scotland for alleged gross misconduct on 12th January 2007. The normal three-month time limit for submitting a claim for unfair dismissal expired at midnight on 11th April 2007.
Mr Bevan appealed against his dismissal. He received a letter dismissing the appeal when he arrived home at 7pm on 11th April. Until that time he had believed a dismissal procedure was still being followed and he would be entitled to a three-month extension of time to lodge an unfair dismissal claim. On 12th April he told his solicitors that the appeal had been dismissed and his solicitors submitted his claim to the tribunal on 18th April.
The tribunal held that it had not been reasonably practicable for Mr Bevan to submit his unfair dismissal claim in time. He had submitted his claim within a reasonable time of the expiry of the normal time limit and his claim was therefore allowed to proceed. The Bank appealed but the EAT dismissed the appeal.
Mr Bevan had reasonably believed, until shortly before the expiry of the normal time limit, that the internal appeal procedure was on-going, and was expecting that he would present a claim if and when he was advised that the appeal was unsuccessful.
The EAT held that this was a “perfectly reasonable” stance for an employee to take. It was also in line with regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 which encourages parties not to start proceedings until internal procedures have been completed.
The EAT made it clear that each case would have to be decided on its individual merits. However, where an employee reasonably believes that a dispute resolution procedure is being followed and that procedure is concluded only shortly before the expiry of a time limit, it seems that a tribunal may decide that it was not reasonably practicable for the employee to submit an application to the tribunal on time.
- Royal Bank of Scotland v. Bevan (2007)
Dismissal for illegality not always reasonable
Dr Kelly, a US citizen, took up a fixedterm five-year post with the University of Southampton, expiring on 31st December 2005. However, her visa only lasted until 8th January 2005.
On 11th January 2005, the University discovered that Dr Kelly’s leave to remain had expired. It wrote to Dr Kelly suspending her without pay and stating that, if her leave to remain was not extended by 4th February 2005, the University would have no option but to terminate her employment.
Dr Kelly applied for indefinite leave to remain, which was granted on 7th February 2005. In the meantime, however, the University sent Dr Kelly a letter dated 27th January 2005, which purported to terminate her employment with effect from 8th January 2005. Dr Kelly received no warning, attended no hearing and had no right of appeal.
Dr Kelly claimed unfair dismissal. Her claim was upheld by the EAT. Employers must not dismiss an employee immediately without consideration even where the ground for dismissal is that the continuation of employment would be in breach of a statutory restriction.
- Kelly v. the University of Southampton (2007)
LEGISLATION Employment Bill published
On 6th December 2007, the Employment Bill was published in the House of Lords. This aims to improve key aspects of employment law by introducing an enforcement framework for the national minimum wage and reforming the statutory dispute resolution procedures.
The Bill repeals the existing statutory dispute resolution procedures and related provisions about procedural fairness in dismissal cases. In its place, employers will be required to comply with a revised version of the ACAS Code of Practice which was in place prior to introduction of the statutory dispute resolution procedures.
Tribunals will still have a discretion to increase or decrease an award depending upon whether the ACAS Code of Practice has been complied with.
The Government’s aim is for the Bill to receive Royal Assent this summer. Although no implementation date has officially been set, the Bill is likely to take effect in April 2009.
Increase in compensation limits for 2008
Compensation limits for a variety of employment tribunal awards and other statutory payments were increased from 1st February 2008. In most cases involving dismissal, the new figures apply where the effective date of termination is on or after that date.
The maximum compensatory award for unfair dismissal has been raised from £60,600 to £63,000; the maximum limit on a week’s pay from £310 to £330; and the minimum award for certain unfair dismissals (for reasons of trade union membership or activities, health and safety duties, pension scheme trustee duties, or acting as an employee representative) from £4,200 to £4,400.
Legislation to protect agency workers
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2007, which aim to increase protection for those seeking work and reduce regulatory burdens faced by employment businesses, have now been published.
The new regulations follow on from the Government’s February 2007 consultation on measures to protect vulnerable agency workers, but they do not follow all the proposals in the consultation paper.
The regulations do not deal with the issue of agency workers not receiving the same rates of pay as permanent workers for like work (a protection extended to other categories of atypical workers, such as part-timers and workers on fixed-term contracts). This kind of protection is currently going through Parliament as a private members’ bill.