Employment and Immigration Legal Updates - 29/9/2008

Heyday - The Advocate General hands down his opinion

As promised we bring you the Advocate General's highly anticipated opinion on the challenge made by Age Concern against the legality of parts of UK age discrimination legislation.

As formerly reported, UK charity Heyday, part of Age Concern, is currently challenging parts of the Employment Equality (Age) Regulations 2006 that allow employers to mandatorily retire and refuse to employ people over the age of 65.

The High Court referred the case to the European Court of Justice (ECJ) to provide an interpretation of the EU's Equal Treatment Employment Directive, which Heyday claim has been breached by the UK government by imposing a mandatory retirement age of 65.

An Advocate General, a senior legal adviser to the ECJ, handed down his recommendation to the ECJ on 23 September 2008. He recommends that the ECJ dismiss Age Concern's challenge. The AG is of the opinion that the default retirement age of 65 and the retirement procedure is not incompatible with the Equal Treatment Directive provided it is objectively justified within the context of national law. The Advocate General's opinion, although not binding, will be taken into account by ECJ judges who are ruling on the case and who are expected to give their Judgment before Christmas.

Approximately 260 employees who have brought claims in the Employment Tribunal after being forced to retire for this reason or who have been refused a job because of their age have had their claims stayed pending the decision of the ECJ. They will now await the decision of the national courts with baited breath.

The AG's opinion will be welcome relief to UK employers. However, it is important to bear in mind that his opinion is not binding. We will have to wait for the ECJ's Judgment at the end of the year and assuming they agree with the AG the case will then return to the High Court where the UK government will have to justify forcible retirement at age 65. So, our advice to employers is to proceed with care as this case is likely to run for some time.

The Points Based System and Strict New Criteria for Foreign Students

Under Tier 4 of the Points Based System, any UK education provider who wishes to teach non EU students will need to be licensed as a sponsor.

Those applying for a licence will need to show evidence that they hold valid accreditation from an accreditation body approved by the UK Border Agency or they will have to show that they have passed an inspection by the Office of Standards in Education (Ofsted).

Colleges and universities who obtain a licence as a sponsor under Tier 4 will need to take responsibility for their foreign students under the new system and should ensure that they are fully aware of all their ongoing obligations as a sponsor, before they apply.

Under the new system, education providers will also need to ensure they keep up to date records for all their foreign students' and must alert the UK Border Agency of any changes to a student's status, for example failure to enrol or attend courses.

Tier 4 is expected to open in spring 2009. All education providers wishing to teach foreign students will need to ensure that they have obtained a licence prior to the opening of Tier 4.

Sponsor Register Now Open

The application process has now started for those wishing to join the sponsor register for Tiers 2, 4 and 5 of the Points Based System.

Any employers or educational institutions wishing to apply to join the sponsor register should ensure their application is completed in time for the opening of the relevant tier.

Tier 2 is going to be implemented in full in November 2008 and will replace the existing Work Permit Scheme. Therefore any employer who wishes to extend an existing work permit or apply for a new work permit from November will need to be licensed as a sponsor.

If you require any advice on any of the issues raised in these articles please do not hesitate to contact our employment team at lonemp@steeleslaw.co.uk or on 0207 421 1720.

Claimant's right to an oral hearing before a claim is struck out

We bring you the Employment Appeal Tribunal's decision against a Tribunal's refusal to allow a claimant an oral hearing prior to striking out his claim.

In Zeynalov v BP Exploration (Caspian Sea) Limited and others the Employment Appeal Tribunal (EAT) found that a Tribunal that refused to allow a Claimant an oral hearing prior to striking out his claim was not acting in accordance with the overriding objective of dealing with cases justly.

Background

Mr Zeynalov bought a claim against his employers, claiming that he had been unfairly dismissed and that he had been subjected to a detriment for making a protected disclosure/s. His claim was for £5 million. His claim was struck out by the Tribunal on the grounds that his claim was misconceived and because Mr Zeynalov had acted unreasonably during the course of the hearing (8 & 9 October) to decide whether the claim should be struck out.

A week before that hearing on 8 & 9 October, Mr Zeynalov submitted another claim form. His intention, when putting forward this new claim form, was to amend the original claim form. In fact, what Mr Zeynalov had done was issue new claims which had to be accepted by the tribunal.

At the conclusion of the hearing, the Employment Judge stated that as the new claims raised complaints which appeared in and had been or were about to be the subject of decision in the first claim, she was considering striking out the new claims. A letter was then sent to Mr Zeynalov informing him that consideration was to be given to striking out all of the new claims.

The grounds of the strike out were based upon the possibility that the claims were vexatious and/or had no reasonable prospect of success. Mr Zeynalov and his employer's representatives were invited to put forward any arguments/comments about the potential strike out in writing. They were then further permitted to put in written submissions in answer to the other's arguments/comments. Mr Zeynalov put forward both his arguments/comments and written submissions. He then requested the opportunity to put in further written submissions and to have an oral hearing. The Employment Judge decided that she would proceed on the basis of the written material submitted by both sides and would not consider the possibility of oral evidence.

The Employment Judge struck out most of Mr Zeynalov's claims and the others were dismissed on withdrawal.

Mr Zeynalov appealed the strike out on the grounds that the Employment Judge was not permitted, under Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 to strike out his claim without an oral hearing. These Regulations provide that if one of the parties requests an oral hearing of a strike out application, the party which asks for that hearing is entitled to one.

Decision

The EAT agreed with Mr Zeynalov, the case was remitted to a fresh Employment Judge to determine the issues regarding the strike out amongst other things.

Comment

The implications of the Regulations which have been applied in this appeal are both time consuming and costly to the employer. Even where an employee brings an obviously frivolous or vexatious claim which in all likelihood will be struck out by the tribunal, where that employee requests a hearing as a result of a strike out application, an employer will suffer the inconvenience and cost of having to attend at tribunal to put forward its case for that strike out.

Employers should therefore beware, when an employee threatens a claim, even where the employer is confident the claim would be struck out by a tribunal, it will have to be prepared to defend such a claim.

These articles copyright © 2008 Steeles Law llp. All rights reserved.