May 16 2005 Employment Law Enews

Welcome to the latest edition of steeles employment law enews. In this edition we look at the issues surrounding maternity pay, the Court of Appeal decision in the case of Hinton v University of East London, and whether a Tribunal's delay in giving its decision gives rise to an appeal?

Maternity Pay After Alabaster

On 3 May 2005 the Court of Appeal gave its judgement in the case of Alabaster v Barclays Bank PLC and the Secretary of State for the Department of Work and Pensions (DWP). After many years of litigation and a reference to the European Court of Justice Mrs Alabaster's claim to an extra £204.53 in maternity pay was upheld.

This case has a simple but far reaching effect: To satisfy the requirements of the Equal Pay Act 1970, a pregnant woman who receives a pay rise in the period starting with the sixth week before the expected week of childbirth and the end of her maternity leave, must have the benefit of that pay rise in calculating her entitlement to statutory maternity pay.

Following the European Court decision in this case the DWP issued the Statutory Maternity Pay (General) (Amendment) Regulations 2005 which came into force on 6 April 2005.

Court of Appeal decision in Hinton v University of East London

The Court of Appeal has overturned the Employment Appeal Tribunal's decision in Hinton v University of East London, holding that a compromise agreement must expressly specify the cause of action being settled in order to be effective.

The two points being considered by the Court of Appeal were whether pursuant to the Employment Rights Act 1996, compromise agreements have to specify the precise claim or claims being settled and whether, in this case, the agreements drafted did or did not include the specific claims.

Mr Hinton was employed as a Principal lecturer in the Cultural Studies Department of the University of East London. He raised a number of grievances that amounted to protected disclosures and he alleged that he had suffered a detriment as a result of those disclosures.

Mr Hinton took voluntary redundancy and the matter was resolved by compromise agreement. The agreement did not however mention that it satisfied claims relating to the detriment suffered as a result of the disclosures.

The Employment Appeal Tribunal disagreed with the Employment Tribunal stating that the recital at the beginning covered all claims and that the list was illustrative rather than exhaustive.

The Court of Appeal reinstated the Employment Tribunal's decision. Mummery LJ giving the leading decision stated that a compromise agreement must specify the particular statutory clam being compromised or at the very least the factual basis of the claim. A general "catch all" recital was insufficient, as it did not make clear what the "particular proceedings" being compromised were.

Implications for employers: great care must be taken by employers to ensure that each and every claim being compromised is specifically mentioned in the agreement, otherwise the employer may face claims which it thought had already been resolved.

Does a Tribunal's delay in giving its decision give rise to an appeal?

In the case of Bangs v Connex South Eastern Ltd, the Court of Appeal had to consider whether an employment tribunal's unreasonable delay, in this instance, a year, could form the basis for an appeal.

Section 21 of the Employment Tribunal Act 1996 states that

"An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings, before, an employment tribunal".

In short the answer is no, unless there are exceptional circumstances. Such circumstances could include ones in which a party can show that there is a real risk that the right to a fair trial under Article 6 of the European Convention on Human Rights has been denied.

Lord Justice Mummery, in giving the Court of appeals judgement said that unreasonable delay on part of a tribunal is a question of fact rather than law. Whilst the possibility that a delay may infringe Article 6 of the Convention of Human Rights that it not the same as saying that appeals can now be raised on questions of fact.

In this case and in the absence of any sufficiently serious procedural errors or material irregularities on the part of the tribunal the delay itself had not deprived Connex of their right to a full and fair trial.

The current Employment Tribunal system should be consigned to Room 101

This year steeles' annual employment debate will look at whether "the Employment Tribunal system should be confined to Room 101". We are very fortunate again that Norman Lamb MP, Liberal Democrat (North Norfolk) has agreed to chair a specially convened panel of experts. The debate is taking place at Broadway House, Tothill Street on Thursday 19 May and will take place from approximately 6pm to 7pm but please join us for drinks and light refreshments from 5.30 pm and again following the debate.

The debate is open to everybody and not only those who have had the experience of an Employment Tribunal claim. We expect this event to be very popular so we recommend you book your free place as soon as possible.

For details on how to book please call Beth Wilson on 0870 60 90 200, email rsvp@steeleslaw.co.uk or book online

Please note a change in one of our panel, Michael Brady, Personnel Manager at First Security (Guards) Limited will be replaced by Michael Berriman, a Principal in steeles London Employment team.

This article copyright © 2005 Steeles Law llp. All rights reserved.