Employment Law Enews

25 January 2005 - Welcome to the latest edition of steeles employment law enews. In this edition we look at burden of proof in discrimination issues, increase in compensation limits, landmark case for discrimination on religious grounds and disclosure

Burden of Proof in Discrimination Cases

There has been a recent case on the issue of burden of proof in discrimination cases. In the case of Webster v Brunel University the Claimant was on the telephone to a co-employee and she heard somebody else in the room use the word "paki". There was no evidence to suggest that this person was an employee or a visitor.

The Tribunal found that the employee had failed to establish that the individual was an employee so the burden of proof did not shift to the Respondent to disprove discrimination.

The Employment Appeal Tribunal reversed the decision. The EAT held that once the employee has established a prima facie case that the speaker could have been an employee then the burden automatically shifts to the Respondent to disprove the discrimination.

This is a very important case as it reviews all the recent case law on the shifting burden of proof and as such should become a leading case in this area.

Increase in Compensation Limits

As of 1 February 2005 compensation limits will rise again!

The main change is to the limit on a weeks pay which can be taken into account for the unfair dismissal basic award and statutory redundancy calculations. This will rise from £270 to £280 per week.

The maximum compensatory award in unfair dismissal cases rises from £55,000 to £56,800.

The new limits will apply where the employment has terminated after 1 February.

For dismissals prior to the 1 February but which are dealt with in the Tribunal after 1 February, the old statutory limits will apply.

Landmark Case for Discrimination on Religious Grounds

A Muslim worker who was fired after going on a six-week trip to Mecca has won a landmark case for discrimination on the grounds of religion. The case involving Mohammed Khan, 43, from Bradford, could open the floodgates for similar actions and all employers should be careful when considering employee requests concerning religious festivals or practices. Whilst the landmark case could lead to Christians suing their employer for working on Christmas Day it is not inconceivable that the new Employment Equality (Religion or Belief) Regulations could extend to Satanists.

Mr Khan, who cleaned buses in Bradford, was sacked for gross misconduct from his £8,000-a-year job after he used his 25-day holiday entitlement and another week's unpaid leave, to visit Mecca. He claimed the holiday was authorised. Leeds-based NIC Hygiene claimed his Hajj pilgrimage was unauthorised.

At first in June 2003 Mr Khan did not receive a response about his trip and the TGWU advised him to put in a written request. The company failed to respond and his manager said if he heard nothing he could assume it was all right.

On 13 January an Employment Tribunal ruled he had been unfairly dismissed and suffered discrimination under the Regulations. He won compensation in excess of £20,000 although he will probably receive less as NIC Hygiene is now in administration.

As reported previously, the new Regulations cover any religion, religious belief or similar philosophical belief. Due to the relatively short time the Regulations have been in force, there are a number of sensitive issues which will need to be clarified. At the moment it appears that workers do not have to provide evidence of their belief. Nor is it clear to what extent the religion must be followed.

DISCLOSURE

E-Disclosure. So What Do We Do Now?

Most businesses depend in some way on computers. As technology improves and the variety of available media increases, it has become easier and more convenient to create, save and store all kinds of data electronically. This has inevitably led to a decrease in the need for traditional paper files. But what happens when a commercial or employment dispute arises? Due to the increased use of computers, information held in electronic form is an important source of evidence.

The mass of crucial information relevant to a dispute is often stored in an array of computer driven hardware including telephone systems, faxes and photocopiers. There is little procedural guidance on how to deal with this documentation and neither the Civil Procedure Rules 1998 (CPR) or Employment Tribunal Rules and Procedures provide specific guidance in this regard. When giving "standard" disclosure, a party is required to make a reasonable search for documents. The CPR defines 'Document' widely as "anything in which information of any description is recorded". The factors relevant in deciding whether a search is reasonable include:

* the number of documents involved;
* the nature and complexity of the proceedings;
* the ease and expense of retrieval of any particular document; and
* the significance of any document which is likely to be located during the search.

Once a search and review of electronic documents has been carried out, a party has to;

a) decide which documents should be disclosed,
b) consider the form data should be produced to the other party, and
c) give consideration to the spirit of the Overriding Objective in Rule 1 CPR which requires both parties to deal with a matter justly, having regard to proportionality, costs, position of parties in terms of bargaining strength and resources and the need for the court to deal with the matter expeditiously and fairly.

Whilst many are requesting formal guidelines to be put into place, a Working Party Report into the issues chaired by The Honourable Mr Justice Cresswell stated last November, 'It would be both undesirable and impracticable to produce any formal rules or checklist that would circumscribe the proper exercise, on the facts of each case, of that test of reasonableness and proportionality'.

Dominic Crossley, Commercial Litigation Associate at steeles comments: "Businesses must be aware that if a dispute arises, their search for documents should include a search of electronic documents. If documents are not disclosed and the other side considers that a full search has not been carried out, an order can be obtained from the court or Tribunal to allow a full search of electronic devices which may contain information relevant to the dispute".

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