Legal News
Confusion reigned on 29 July when there seemed to be a conflict in newspaper reports. The Daily Mail front page headline announced: ‘Now the Right to Work Past 65’ – whereas the Daily Express said the opposite: ‘Workers Can Be Forced Out at 65’. In fact, both were right! The Daily Mail was referring to the government’s announcement that the default retirement age would be abolished (phased out over 6 months from 6 April 2011 to 1 October 2011). The Daily Express, instead, had focused on the Court of Appeal judgment handed down on the same day, that on the facts of the particular case, a partnership was justified in requiring a partner to retire at age 65.
Spare a thought for Age Concern who, in the summer of 2009, in the much publicised Heyday case, tried (and failed) to persuade the Courts that the default retirement age was contrary to EU law and should be abolished.
The controversy over public sector redundancy pay and pensions has continued this month and looks set to run on over the summer. In a nutshell, this revolves around the entitlement of civil servants to enhanced redundancy arrangements (far in excess of statutory redundancy pay) under the Civil Service Compensation Scheme. This Scheme was introduced at a time when the pay of civil servants was lower than similar jobs in the private sector. It is argued this is no longer the case and enhanced redundancy payments are now overly generous. At the beginning of July, the Coalition prompted reinvigoration of the debate by announcing their intention to introduce a Bill to revive amendments to the CSCS and set a cap on redundancy payments. Needless to say this has not gone down well with the PCS Union. A summer of discontent indeed!
Case Law
Still on the subject of redundancy pay and retirement, the case of Kraft Foods v Hastie was reported this month in the EAT. Kraft (or presumably Cadbury) had a contractual redundancy scheme whereby a cap prevented employees from receiving more than they would have earned had they stayed with the Company until retirement. In the Claimant’s case, this reduced his payment by £14,000. The Claimant brought a claim for age discrimination.
At first instance, the Tribunal found the cap disproportionately applied to those approaching retirement and it was unjustifiable. The original reason for the cap was to prevent employees receiving “windfalls”. The EAT overturned the decision of Employment Tribunal. It felt that, since the purpose of the scheme was to compensate employees for the loss of expectation of remaining in employment to retirement, this was a proportionate means of achieving a legitimate aim.
And finally, the EAT case of Nicolson HighlandWear Limited and Gordon Nicolson is deserved of a mention as being, at first glance, both unusual and/or slightly surprising as costs were awarded against the winner of the case! Mr Nicolson won an unfair dismissal claim (thanks to the good old statutory dismissal procedure), despite the Tribunal finding he had defrauded his employer. He was also found to have lied on oath. On appeal the losing party (the employer) received a costs order against Mr Nicolson on the basis he had brought/conducted proceedings unreasonably, bearing in mind he knew and had admitted to his own fraud. They said that whether the Claimant won or lost his claim was irrelevant for the purposes of the rules on costs.
It is also interesting that the EAT held that Claimants in unfair dismissal complaints are not entitled to pursue complaints merely for the purpose of obtaining a declaration of unfair dismissal. The only purposes of an unfair dismissal complaint should be to obtain an award of money, to obtain re-engagement or to obtain reinstatement.
Olivia Sinfield
Olivia Sinfield is an Associate Solicitor at the niche employment law firm PJH Law. You can read their blog here.
Case Law
Still on the subject of redundancy pay and retirement, the case of Kraft Foods v Hastie was reported this month in the EAT. Kraft (or presumably Cadbury) had a contractual redundancy scheme whereby a cap prevented employees from receiving more than they would have earned had they stayed with the Company until retirement. In the Claimant’s case, this reduced his payment by £14,000. The Claimant brought a claim for age discrimination.
At first instance, the Tribunal found the cap disproportionately applied to those approaching retirement and it was unjustifiable. The original reason for the cap was to prevent employees receiving “windfalls”. The EAT overturned the decision of Employment Tribunal. It felt that, since the purpose of the scheme was to compensate employees for the loss of expectation of remaining in employment to retirement, this was a proportionate means of achieving a legitimate aim.
And finally, the EAT case of Nicolson HighlandWear Limited and Gordon Nicolson is deserved of a mention as being, at first glance, both unusual and/or slightly surprising as costs were awarded against the winner of the case! Mr Nicolson won an unfair dismissal claim (thanks to the good old statutory dismissal procedure), despite the Tribunal finding he had defrauded his employer. He was also found to have lied on oath. On appeal the losing party (the employer) received a costs order against Mr Nicolson on the basis he had brought/conducted proceedings unreasonably, bearing in mind he knew and had admitted to his own fraud. They said that whether the Claimant won or lost his claim was irrelevant for the purposes of the rules on costs.
It is also interesting that the EAT held that Claimants in unfair dismissal complaints are not entitled to pursue complaints merely for the purpose of obtaining a declaration of unfair dismissal. The only purposes of an unfair dismissal complaint should be to obtain an award of money, to obtain re-engagement or to obtain reinstatement.
Olivia Sinfield
Olivia Sinfield is an Associate Solicitor at the niche employment law firm PJH Law. You can read their blog here.
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Posted by: Jordan | Friday, 06 August 2010 at 02:30 AM