1/ Ibeziako v York Teaching Hospitals NHS: an EAT judgment on postponement of costs hearings, means to pay costs awards & the clearing of an ET direction that so very often confuses inexperienced parties.
2/ I brought an ET claim the subject of which doesn't matter, but which the ET found partially based on falsehoods. On the R's application a costs hearing was listed. I applied to postpone the hearing but this was refused.
3/ A couple of days before the costs hearing, R sent a skeleton, which I started to work on the following day. I attended the costs hearing & applied to postpone it because he'd had no sleep due to putting his skeleton together & because his anxiety levels were high.
4/ The ET refused the application, finding I was able to participate effectively. The ET noted he was cogent in making the adjournment application & lacked medical evidence of inability to participate.
5/ The ET made a £2,000 cost order (10% of the requested amount) in spite of I having over £11,000 of debts he was unable at the time to pay. The ET made the order in light of its views that there was a prospect of him being able to pay the order in the future.
6/ At a 3(10) hearing, HHJ Auerbach gave permission to appeal on (i) whether the ET should have allowed a short adjournment to provide further medical evidence, & (ii) sufficiency of reasoning on future possibility of payment of costs in spite of current impecuniosity.
7/ On (i), HHJ Tayler (at the full appeal hearing) noted the guidance to ETs in Mukoro & Teinaz where medical emergency renders a party unable to attend at the last minute, & also Iqbal's guidance where a stressed party submits they aren't able to continue with the hearing.
8/ The EAT found the case to be an Iqbal situation. The ET has a wide discretion & took account of I's submissions, weighing them against the cogency of his postponement application which demonstrated his ability to participate effectively in the costs hearing. The ET was upheld.
9/ On (ii), the EAT noted in particular Vaughan v Lewisham where the EAT authorised cost awards based on a realistic prospect the party might at some future point be able to pay a substantial amount of the costs ordered rather than limiting itself to means at the hearing date.
10/ The EAT found the position considered by the ET with sufficient care, accepting that I wasn't in a position at the date of the hearing to pay £2,000 costs but concluding there was a realistic prospect of him doing so in the future.
11/ The EAT noted the lack of any medical evidence to show I wouldn't be able to work for a lengthy period, & thus held the ET entitled to conclude I's position might well improve in the short term. The ET's reasoning was Meek compliant.
12/ Finally, experienced practitioners will be familiar with ET directions requiring any written submissions be sent not less than 7 days before the hearing.
The EAT clarified this isn't addressed to skeletons but to those not wishing to attend but to put submissions in writing
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1/ PG2C v Davis: A welcome return of the ET President to the EAT and a notable application of the recent weakening of the rule in Browne v Dunn on the need to allow witnesses to explain themselves before the ET finds dishonesty against them.
2/ D was employed as a business development director of a project & programme management company. His role involved extensive entertainment of clients & expectations of alcohol consumption. D was diagnosed with Type 1 diabetes prior to his dismissal.
3/ D brought a number of claims, but the ET found 2 in his favour (finding it unnecessary to rule on some), namely that his dismissal & R's directors' refusal to acknowledge his ill health were both direct disability discrimination (a s.15 claim was 1 of those not ruled on).
1/ Thomas v FW Farnsworth: A useful reminder of the principles of Park Cakes v Shumba as to when terms of enhanced redundancy payment are implied into employment contracts by custom & practice.
2/ 27 workers at Pizza Factory were made redundant & paid statutory redundancy pay plus 10%. They claimed this was in breach of a contractual entitlement to enhanced redundancy pay of double the number of statutory weeks & no cap on a week's salary.
3/ Before the ET, the employees asserted their entitlement on 2 alternative bases: (i) a '1999 redundancy agreement' was incorporated & applied to all future redundancies; (ii) a term on enhanced redundancy pay was implied by custom & practice.
1/ Opalkova v Acquire Care Ltd is a (short) must-read judgment on the application of the ET's powers to make a PTO (or costs order) under r.76(1)(b) (i.e. where the claim or response had no reasonable prospect of success).
2/ The facts of the case aren't important. What's important though is that O's ET1 contained 6 bases of claim, under 3 of which she succeeded. O applied for a PTO. The ET denied the application, in part because AC succeeded in responding to 3 of the 6 bases of claim.
3/ The relevant part of ET Rules r.76 is set out below. In considering whether the response had no reasonable prospect of success, the EJ considered the response as a whole & the circumstances in the round. HHJ Tayler held this to be in error.
1/ Gwynedd Council v Barratt & Hughes: CA clarifies that the lack of a right to appeal isn't determinative (or determinative save exceptionally) of a redundancy unfair dismissal claim, but merely one issue among many when considering fairness.
2/ B&H were employed as secondary school PE teachers. Their school closed, as did all primary schools in the area, to be replaced with a super school, providing education all the way through primary & secondary levels. On closure, B&H's contracts terminated.
3/ Staffing at the new school was by application process, with unsuccessful candidates being made redundant. B&H applied for the relevant posts in the new school but were unsuccessful. They weren't given a right to appeal & the school said it'd have been futile.
1/ Amdocs Systems v Langton: an important warning to employers to pay close attention to the insured benefits they offer employees & a need to very carefully word entitlements intended to be limited to what the insurer from time to time covers. assets.publishing.service.gov.uk/media/6124becb…
2/ L joined AS's predecessor, which AS acquired. His job offer & contract included income payment protection in the following terms:
3/ On transfer, AS presented that the IPP scheme wouldn't be affected, & L signed a form confirming he wished to continue to participate in the scheme.
1/ Brightman v TIAA Ltd - EAT holds ET erred in considering medical evidence about B's condition post-dismissal when assessing the fairness of a capability dismissal & whether there'd been a failure to make reasonable adjustments. #ukemplaw
2/ B was an auditor with brittle asthma, a blood clotting problem & a slipped disc. These caused B to be absent from work. The absences grew in length & regularity. She was referred to OH & examined by a doctor who didn't have supplementary notes she'd provided.
3/ As a result, B didn't permit the release of the Dr's report until he'd seen her notes. This took about 4 months - the notes didn't change the Dr's opinion. The report said she was fit for work but would continue to require sickness absences of like magnitude to the last year.