RSS Feed

Tag Archives: Employment law

O’Brien loses Court of Appeal case on judicial pensions backdating

Posted on

For latest Supreme Court update on O’Brien, see the note at the end of this piece regarding the reference to the European Court of Justice

A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

The MoJ barrister, the ‘Muslim weapons website’ – and a bad case of alleged racial profiling

Posted on

The UK Ministry of Justice has been spared an embarrassing tribunal case in which a barrister employed at a London magistrates court alleged racial discrimination. Haras Ahmed, a magistrates court adviser, had come under suspicion because another more junior employee, who was also Asian, had been taking bribes. An employment tribunal found their “shared ethnicity” was part of the reason for the suspicion of Ahmed, which was unfounded.

A suggestion had also been made to senior management that Ahmed had links on his computer to “Muslim sites containing weapons”. They turned out to be pictures of clay pigeon shooting.

The Tribunal considered that Ahmed’s removal from Redbridge Magistrates Court arose from “pressure from senior management due to concern that the Claimant may be implicated in the Redbridge fraud” and hence was done unreasonably and in bad faith. HM Courts and Tribunals Service were in effect under an obligation to prove their conduct was not racially motivated, said the Tribunal. Read the rest of this entry

Ministry of Justice’s 2½-year legal wrangle over ‘bullying’ Court of Appeal Master

Posted on

The UK Ministry of Justice has been caught up in a two and a half year legal wrangle with senior Court of Appeal lawyer accused of bullying conduct.

Robert Hendy, a Master in the Civil Appeals office, has been suspended on full pay in excess of £65,000 since December 2011 when two female lawyers made complaints about him. His conduct was said to be bullying and undermining of colleagues. Hendy denies all the allegations against him.

His dispute about disciplinary procedures reached the High Court this week where Mr Justice Mann said: “There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial” – though these have since been dropped.

The High Court had heard that after compiling a 70-page report on the matter, an investigations officer appointed under the MoJ disciplinary procedure, Stephen McAllister, concluded there was enough evidence to prove the bullying and harassment allegations against Hendy and that they should be considered serious and that specific allegations of bullying particular people should be regarded as gross misconduct. He made comments about his power to sack people and “He [McAllister] found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient.”

Read the rest of this entry

Judicial pensions and O’Brien: MoJ retreats before the little army of part-time judges

Posted on

In these straitened times the Government is cutting off legal avenues to almost everyone, hence denying the crumbs and scrapings of bread and butter this meant to all but those starry City law firms. Now the Ministry of Justice has moved swiftly to block another handy source of minor revenues to lawyers – and to avoid a costly bust-up with members of its own judiciary.

The litigants in this case would have been that oppressed and misunderstood minority, not quite in the newly defined precariat class, but certainly living on the margins of society and needing someone to stand up for them.

They are the little army of part-time fee-paid judges, recorders, tribunal chairs, adjudicators and assessors who keep the wheels of grassroots British justice running smoothly.

What was in prospect was that hundreds of well-shod, sensibly suited, grey-headed or blue-rinsed judges, recorders, tribunal chairs etc would have marched on some of those very same tribunals wildly waving their writs containing their revolutionary demands.

What do they want? Pensions. When do they want them? Now would be nice, backdated if possible, please.

Their case is pretty unimpeachable. The UK Supreme Court has ruled in O’Brien v MoJ that the exclusion of fee-paid Recorders from the judicial pensions scheme was discriminatory against part-time workers under EU equal treatment regulations. It follows that all other judicial fee-paid part-timers have (prima facie) similarly been discriminated against.

The only issue was whether the part-time judges, tribunal chairs, adjudicators etc would have to divert themselves from their important labours to bang in their claim forms before they were time-barred – thus clogging up the Employment Tribunal system and requiring the payment of more judges, tribunal chairs, etc to clear the backlog. Vicious circle, you see. Read the rest of this entry

George Osborne’s shares-for-rights plan: new tax avoidance scheme for the rich

Posted on

UK Chancellor George Osborne’s employee “shares-for-rights” plan will have sent tax accountants scuttling to their calculators to assess just how big a windfall this will be for the rich.

Never mind the offer of a couple of thousand quid’s worth of shares to ordinary workers in exchange for surrendering rights on unfair dismissal, redundancy, flexible working, time off for training and maternity. Look instead at the £50,000 maximum for this share disbursement – free of capital gains tax (CGT) when they are sold.

Alrich is not privy to the envelope, upon the reverse of which Osborne’s plans are doubtless minutely detailed, but it seems unlikely that any company will hand out £50,000 to any shopfloor workers. However, the sum in free shares could provide a rather nice golden hello for their highly valued workers – the ones they already pay well and incentivise with bonuses, nice pensions and comfortable contractual conditions.

Read the rest of this entry

Hacking hack sackings: can News of the World journalists sue for reputational damages?

Posted on

So, after the News of the World sackings, how are the poor old NoW journalists, who have lost their jobs because of the phone hacking scandal, to scrape a living now?

Offer themselves to other papers? But would you employ a second-hand hack from Britain’s biggest selling toxic brand (apart from Rentokil Mouse Killer perhaps)? Maybe hawk around some of the juicier secret documents snatched from the NoW conflagration? But two wrongs don’t make a right, and the laws on handling stolen goods can be pretty strict.

So why not try suing the company for wrongful dismissal? It’s not easy, but it could be lucrative and legal. The average News of the World journalist is now a pariah – shunned and avoided in the street but more importantly, through no fault of his or her own, likely to face difficulty getting a job on a more reputable organ. So sue the Rupert Murdoch empire!

What you are looking for is “stigma damages” – the trashing of your professional reputation through association with a company that has become notorious for – let’s call it dubious practices.

The precedent is the 1997 House of Lords case Malik v Bank of Credit and Commerce International (coupled with Mahmud v BCCI).

Before we proceed we should note that there is not as yet proof that News International, owners of News of the World, or senior mangers acted illegally or can be blamed for the hacking scandal. We do know, however, that the reputation of the News of the World has collapsed sufficient for it to be closed and extensively fumigated while its employees stumble out into the harsh light of publicity and public disapprobation.

In the case of BCCI, which was closed by regulators in 1991, we know that it “had reached the point where the bank itself could be identified with dishonesty. This was a dishonest business, a corrupt business” – the words of Lord Nicholls, hearing the case.

Malik and Mahmud were senior employees made redundant by the bank’s collapse who found that “their association with BCCI placed them at a serious disadvantage in finding new jobs”, such was the scandal attached to their old employer. In the words of Lord Steyn “they were tarnished and therefore undesirable employees to recruit” despite themselves having no role in the dishonesty and corruption. But does the employer (in this case in liquidation) continue to have a legal responsibility for this loss of reputation after the employees have been dismissed? The answer is yes.

‘In agreeing to work for an employer the employee, whatever his status, cannot be taken to have agreed to work in furtherance of a dishonest business. This is as much true of a doorkeeper or cleaner as a senior executive or branch manager’ – Lord Nicholls

Let us assume there is an implied contractual duty for the employer in any firm to maintain trust and confidence among employees (there is). It follows that there is a duty to each employee that the business will be run along moral and legal lines. It would be difficult, after all, to argue the opposite – that employees should be obliged to carry on working for a company acting immorally or illegally. “In agreeing to work for an employer, the employee, whatever his status, cannot be taken to have agreed to work in furtherance of a dishonest business,” as Nicholls points out.

If the employer’s breach of that duty creates a stigma leading to lower employability for the employees, (a “handicap on the labour market because they were stigmatised by reason of their previous employment” as Nicholls put it) then on the face of it damages are recoverable for the financial loss.

Thus: “If the employer commits a breach of the term [duty to maintain trust and confidence], and in consequence the contract comes to an end prematurely, the employee loses the benefits he should have received had the contract run its course until it expired or was duly terminated.”

So it might well be that if News of the World journalists, hitherto regarded as top grade operatives despite the grubby use to which their excellent skills were put producing the paper, now find themselves shunned by other potential employers as a result of the closure brought about by management failings – kerching! They can claim wrongful dismissal and damages for lost earnings – potentially to the end of their working lives.

So it could be the employer’s conduct “prejudicially affects an employee’s future employment prospects. The conduct may diminish the employee’s attractiveness to future employers.” There are other claims such as lost career opportunities and injured feelings (yes, even News of the World hacks have feelings).

If News International comes out of this smelling of roses on the basis that it knew nothing of what was going on under its collective corporate nose, it could nevertheless be argued that its duty extended to actively creating trust and confidence by ensuring such things were not going on.

The potential flood of BCCI cases was, it must be noted, stymied by Bank of Credit and Commerce International v Munawar Ali in 1999. Here it was deemed necessary for former employees to prove actual loss, in other words show that they really could not get work or had to take lesser jobs because of the reputational damage caused by BCCI.

The reputational issue might only apply to senior staff, wholly innocent people over whom the suspicion of complicity in the hacking might nevertheless lie. But senior staff would, of course, be the ones with the biggest claims.

There is already talk of staff suing for unfair dismissal, a relatively straightforward legal remedy that could cost the company £14m, according to one estimate. In fact the legal ramifications are far from straightforward – and potentially could cost far more.

News extra: Law firm Silverman Sherliker prepares for stigma damages class action against News of the World

Related post: Times’s ethical options after NotW phone hacking scandal

Note: Nothing in Alrich’s Weblog or any posting therein, however well argued, should be taken as professional legal advice or relied on in any way

%d bloggers like this: