In London Central Bus Company Ltd v Nana-Addai [2011] it was decided that in determining a wrongful dismissal claim, the tribunal must decide what, as a matter of fact, actually happened and whether what the employee actually did was so fundamental a breach as to justify instant dismissal. In contrast to the test in unfair dismissal cases, the employer’s “reasonable belief” of what happened is irrelevant. In this case, a bus driver had been summarily dismissed for negligence in failing to check the wheels of a bus, one of which subsequently came off whilst the bus was carrying passengers. The tribunal rejected his unfair dismissal complaint but held he had been wrongfully dismissed. The EAT upheld cross-appeals and remitted the case back to the tribunal because the tribunal had confused the two different tests and failed to make all of the necessary findings of fact.

This case shows that clearly there is a different test which applies in wrongful and unfair dismissal cases. An employer who has a reasonable belief that an act is sufficiently serious to justify gross misconduct for the purposes of unfair dismissal might still be liable for wrongful dismissal as that test is not subjective.

Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT

The EAT has held that an employee on long-term sick leave must request annual leave in accordance with the Working Time Regulations to be entitled to payment for it. The case in inconsistent with previous EAT authorities. A nurse injured was on long-term sick leave for 3 years. Upon termination of her employment, the employer paid her in lieu of untaken leave accrued in the final leave year, but nothing in respect of the two previous leave years. The nurse brought a tribunal claim seeking payment in respect of leave for each of those 2 years. It was accepted that she had accrued leave in those years but the tribunal found that she had to trigger the entitlement to be paid for it by giving notice, which she had not done. The EAT upheld this decision and was satisfied that this approach was consistent with current ECJ case law. The employer was not under any contractual duty to inform the employee of her right to request leave while absent on sick leave.

This is decision is also inconsistent with the EAT decision in NHS Leeds v Larner in which the employees untaken holiday leave was carried over to the next yera regardless of a request being made. This decision however was based on European cases and the WTD which is not directly effective in UK law.

The implementation of the Family Procedure Rules 2010 (FPR 2010) on the 6 April 2011 is the largest wholesale reform of family procedure for 20 years. They apply in the family proceedings court, county court and High Court and introduce an overriding objective, case management provisions, a streamlining of procedure and contain new ADR (mediation) provisions.

The aim of the overriding objective is to enable the court to deal with cases justly, having regard to any welfare issues involved. Key factors are proportionality, ensuring the parties are on an equal footing and the active management of cases. The FPR 2010 introduce, by way of a Practice Direction, a pre-application protocol (the Protocol) for mediation information and assessment. The Protocol provides for all potential applicants for a court order in relevant family proceedings, before making their application, to have followed the steps set out in the Protocol. This requires a potential applicant, except in certain specified circumstances, to consider with a mediator whether the dispute may be capable of being resolved through mediation.

For a full review of the new rule please conduct us.

The disadvantages are the inability to insist on a settlement and thus secure a remedy without agreement and sometimes there can be a lack of legal enforceability of terms (depending on how the settlement is documented). Also the early disclosure of strengths and weaknesses (which may sometimes actually be an advantage) can perhaps be considered a disadvantage.

Perhaps the main advantage is that if the mediation results in a settlement, apart from the fact the costs involved are much less than a litigated dispute, the settlement can include almost anything you want whereas the court have limited powers. So in matrimonial matters you can deal with all aspects of finances and children and include provisions which, for example, require one party to pay a credit card bill (which the courts cannot order). In employment matters, you can negotiate a reference, considers alternative roles and perhaps even negotiate a new contract.

There is an EU Directive on mediation. The aim of the directive is to facilitate access to alternative dispute resolution and promote the amicable settlement of disputes by encouraging the use of mediation and ensuring a balanced relationship between mediation and judicial proceedings. England and Wales have made progress in their action to implement the Directive with the introduction of a new Section III in CPR 78 (CPR 78.23-78.28) which deals with the enforceability of mediation settlement agreements and protecting the use of mediation evidence.  The new rules in England and Wales took effect from 6 April 2011.

On 1 October 2011 the following new laws will apply: (a) the Agency Workers Regulations 2010, which implement the Agency Workers Directive, giving agency workers a right to equal treatment with their directly recruited counterparts after 12 weeks in the job; (b) amendments to national minimum wage rates; and (c) although the Regulations phasing out the default retirement age of 65 have already taken effect since 6 April 2011 via transitional provisions, those transitional provisions apply only to the retirement of persons who have reached the age of 65 by 1 October 2011.

From 6 April 2011, the position fundamentally changed: employers are no longer entitled to issue notices of retirement to employees, and so are no longer able to take advantage of the automatic protection against age discrimination and/or unfair dismissal claims when retiring an employee who has reached the age of 65. Going forward, employers will have to show some other potentialy fair reason for dismissal other than retirement in order to avoid a successful claim for unfair dismissal (for employees with unfair dismissal rights), ie capability, conduct, redundancy or some other substantial reason.  Employees will also have to show justification of any dismissal for age-related reasons, in order to avoid a successful claim of age discrimination. Please contact us for further advice on this subject and be sure to review your employment contracts.

A pre-nuptial (or pre-registration) agreement is a contract between the parties to an intended marriage or civil partnership that seeks to regulate their affairs in the event that their relationship ends. For the majority, financial arrangements will be the main focus of such agreements.

Pre-nuptial agreements are not formally binding in England and Wales. They have been regarded by the court as persuasive and even “decisive” and a pre-nuptial agreement may influence the outcome of an application for ancillary relief (a financial remedy), either as part of all the circumstances of the case that the court has a duty to consider, or as conduct it would be inequitable to disregard. Following the Supreme Court decision in Radmacher (formerly Granatino) v Granatino that advice may need to be tempered by the weight given to the pre-nuptial in that case.

In Radmacher (formerly Granatino) v Granatino a pre-nuptial agreement drawn up in Germany, had been entered into by a French husband and a German wife of substantial means. The parties were married in London and were living in England at the time of separation. In both Germany and France such agreements are enforceable. Under the terms of the agreement no financial provision would be made for either spouse in the event of a divorce. The wife’s appeal against the lower court’s decision to award the husband approximately £5.8 million despite the existence of the pre-nuptial agreement was successful in the Court of Appeal and upheld by the Supreme Court. The Court of Appeal held that insufficient weight had been given to the existence of the pre-nuptial agreement in the initial award. Lord Justice Thorpe in his leading judgment, said that he believed that it had become ‘increasingly unrealistic’ for the courts to disregard pre-nuptial agreements.In the Supreme Court judgment in Radmacher the court set out guidelines (specifically applied to the facts in Radmacher) as to what weight should be given to a pre-nuptial agreement as follows:

• •Were there circumstances attending the making of the agreement which should detract from the weight which should be accorded to it? Parties must enter into a pre-nuptial agreement voluntarily, without undue pressure and be informed of its implications. The question is whether there is any material lack of disclosure, information or advice.
• •Did the foreign elements of the case enhance the weight that should be accorded to the agreement? In 1998, when this agreement was signed, the fact that it was binding under German law was relevant to the question of whether the parties intended the agreement to be effective, at a time when it would not have been recognised in the English courts. After this judgment it will be natural to infer that parties entering into agreements governed by English law will intend that effect be given to them.
• •Did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement? A pre-nuptial agreement may make provisions that conflict with what a court would otherwise consider to be fair. The principle, however, to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to individual autonomy and to the reasonable desire to make provision for existing property. In the right case an pre-nuptial agreement can have decisive or compelling weight.

The High Court has indicated that arbitration clauses in partnership or LLP agreements are unenforceable if they are being used to limit the person’s right to pursue a discrimination claim.

Draft guidance on the Agency Workers Regulations 2010, which will give temporary agency workers the right to equal treatment in comparison with permanent workers with respect to basic working conditions after a qualifying period of 12 weeks are due to take effect on 1 October 2011.

Many important employment rights are only given to employees. For example, only employees can claim unfair dismissal, maternity leave and redundancy rights. Not all people who work for others are considered to be employees. Some work for others but remain independent contractors. Sometimes, as with agency workers, a worker may have two potential employers and it is not clear whether he is employed by either one (or both) of them.

Agency workers are currently entitled to some of the same rights as permanent employees such as health and safety protection, national minimum wage, limits on working time, paid holiday and anti-discrimination protection.

The Temporary Agency Workers Directive was passed by the European Parliament on 22 October 2008, and must be implemented in the UK by 5 December 2011. The Directive gives agency workers the right to be treated on equal terms with the employees and workers of the hirer, as regards basic working and employment conditions.

There is in principle no reason why the parties to a contract cannot include a provision for the contract to be terminable, with immediate effect, on the payment by the employer of a sum in lieu of notice, and, subject to the use of clear words, there is no requirement for the employee to be notified of the exercise of that right by the employer in order for it to be effective.

Employers are free to give notice of dismissal at any time, unless they have expressly or impliedly agreed not to in the contract. An employer or employee can lawfully terminate the contract of employment without notice in a number of ways, including by the making of a payment in lieu of notice (’PILON’) in accordance with an express contractual right to do so.

Please contact us if you think you need to review your employment contracts.