Chambers Blog

Since my blog dated 31^st March 2008 more changes have been proposed in Employment Law. ACAS have now released proposals for the new Disciplinary and Grievance Procedures. The revised code is set to simplify the existing code and provides basic practical guidance to employers, employees and their representatives. It also sets out principles for handling disciplinary and grievance situations in the workplace. A key element of the new proposals is that they aim to encourage the internal resolution of disputes without the need to attend an Employment Tribunal.

Written by Kate Richards, Barrister at New Walk Chambers, specialising in Employment Law.

Chambers' employment barristers act and advise in all employment tribunal matters in Leicester, Nottingham, Birmingham and further afield including disability discrimination, holiday pay, breach of contract and unfair dismissal cases.

 Many employment tribunal claims concern constructive dismissal claims where an employee can resign because of an employers serious breach of contract towards him. In legal parlance he can accept the employer's repudiation of the contract. For this, the employee can rely upon the employer's breach the implied term in the contract of mutual trust and confidence. However employers should be alert to a defence they may have if the employee has first broken the employment contract. If so, the employee is not entitled to claim unfair constructive dismissal by claiming a repudiation by the employer because he has first destroyed the employment relationship. This happened in the recently reported case of RDF Media Group Plc V Clements [2008] IRLR 207 in fact a High Court case, which of course New Walk Chambers employment barrister cover as well.

 There Mr Clements had agreed a 3 - year non-competitive agreement with his employers RDF Media Group which he wished to get out of. The agreement provided that the 3 year period would be reduced to 2 years if the employers unlawfully dismissed him. Clements alleged that the employers had breached the implied term of trust and confidence by inter alia going to the the press with unflattering remarks (that Mr Clements was a "phenomenal egomaniac" and other information. The High Court held that the employer had indeed overstepped the mark by going to the press [other comments made internally that Mr Clements was "a bit dim" did not breach the term] and these were in breach of contract as being a serious attack on his character. However Mr Clements could not rely on the employer's breaches because he himself had been earlier in breach of contract by contacting a competitor of the employer and disclosing confidential information: Mr Clements himself had been disloyal and in breach of his own duty of fidelity.

The result was that Mr Clements had not been unlawfully dismissed by the employer and thus was bound by the full 3 year period of his non-competition agreement with the employer.

Wait for the new direct public access employment barrister's website which will be out soon. New Walk Chambers employment barristers as well as offering their services for employment tribunal claims can now in certain cases offer their services direct to the public.

This applies to employment tribunal claims for both Claimants and Respondents in all areas of employment law.

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.

We are pleased to welcome back the University of Leicester School of Law!

New Walk Chambers has again been chosen as the venue for the Postgraduate Open Evening, which will take place on 21^st May 2008. After a Reception at 5.30, there will be presentations and the opportunity to consult individually with staff from the School of Law.

The Open Evening will be of interest to anyone considering postgraduate study of law, whether it be the Distance Learning LLM in Employment Law, which is my particular interest, or any of the other programmes available. For full details of Postgraduate Study at the University of Leicester, please visit http://www.le.ac.uk/law/pg/

If you wonder how your ambition to achieve a postgraduate degree can fit in with a busy professional life, then please join us on 21^st May to find out more.

Written by David Monk, Barrister at New Walk Chambers, specialising in Employment Law.

  The recent Court of Appeal case of Dynamex Friction Ltd & Anor v Amicus & Ors is a fascinating look at the impact upon employees where a company enters administration and the business subsequently passes to a phoenix company. In many cases the owners and controllers of the phoenix are the same individuals who drove the original company into administration in the first place.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 are designed to provide rights to employees where their employment transfers from one person or company to another. It provides that employees will have a claim of unfair dismissal if they were dismissed in consequence of the transfer. If the business had simply been sold on without the intervening administration, then the employees' employment would have transferred with it.

In this case however, when the company went into administration, the administrator decided that there wasn't enough money in the company to pay the employees so dismissed them all. He then sold on the business to a company which fell into the eventual control of the original director. Here the reason for the dismissal was not a transfer, it was because the administrator couldn't afford the wage bill.

The employees contended that their dismissal was the consequence of the transfer, as they alleged the overall process was a result of the ‘machinations' of the previous director and that he had planned it all along. Had this argument been successful it would have struck an important blow for the many employees who find themselves in this situation. The Court of Appeal however, by a majority, found that once it was established the dismissing officer made his decision independently, and for a particular reason, it was impossible to look behind that reason at any surrounding context or scheming.

Written by Joseph Neville, Pupil at New Walk Chambers, specialising in Employment Law.

It seems that fundamental changes in the employment law are on the way (albeit some may say long overdue). The Employment Law Bill 2007, which is currently being debated in the House of Lords is set to repeal the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 The 2004 Regulations introduced the statutory disciplinary and grievance procedures in an attempt to reduce the employment litigation. For those practising law in this area it is abundantly clear that this has not been the case. Instead research conducted by the Department for Trade and Industry shows that under the Regulations disputes have become more formalised with the involvement of solicitors and barristers at earlier stages.

The Bill proposes a new non-regulatory system of employment procedures to encourage the informal resolution of disputes and an increased involvement by ACAS. In addition, increased powers will be given to tribunals' to reach a determination without a hearing.

 Other changes proposed within the Bill include:

• Changes to the enforcement of the national minimum wage, for example by making offences under the National Minimum Wage Act 1998 triable either in the Crown Court or Magistrates' court;
• Changes to ensure compliance with the European Court of Human Rights judgement in Aslef v UK. Clearer rights for trade unions could not lawfully expel British National Party activists;
• A new fast track procedure for dealing with certain monetary disputes.

The Bill is due to receive Royal Assent this summer and is currently scheduled to come into force in stages from October 2008.

Written by Kate Richards, Barrister at New Walk Chambers, specialising in Employment Law.