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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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RECENT CASES |
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Employee rights on insolvency Occupational pension benefits ¶¶9056+, 3405+ The European Court of Justice has held that the UK has not correctly implemented the EC Directive on Insolvency Protection with regard to pension benefits (Art 8 EC Directive 80/97). The Court held that while there was no obligation to guarantee entitlement to benefits in full, the Directive provides employees/ex-employees with a minimum level of insolvency protection with regard to their acquired and prospective rights to benefits under an occupational pension scheme. UK domestic legislation the Court concluded did not meet this minimum standard of protection as unchallenged statements before the Court showed that two of the claimants in the main proceedings would only receive 20 and 49% respectively of the benefits to which they were entitled. The Government will need to change the current rules and further developments will be covered in future updates. Robins and ors v Secretary of State for Work and Pensions [2007] IRLR 270, ECJ
Employment claims Advising and handling claims 1. Time limits (extension of time limit: incorrect advice) ¶¶9470, 9474 Although the EAT has recently begun to take a less stringent view and has allowed an employee’s claim to proceed even though it was out of time because she had been given incorrect advice (Marks and Spencer plc v Williams-Ryan and see ¶9470), this does not mean that this will automatically happen. In this case, like in Marks and Spencer plc v Williams-Ryan, the employee was unaware that, in order to protect his position, he needed to present his unfair dismissal complaint to the tribunal within the 3-month time limit as he had received incorrect advice from the Citizens Advice Bureau that he needed to exhaust his employer’s internal dispute resolution procedures before submitting a claim. However, this case was different in that the internal dispute resolution procedure concluded before the end of the time limit (by 1-2 days) and as there were no grounds given on which to conclude that it was not reasonably practicable for the claim to be presented in the part of the three months that remained after the appeal process was completed and as no reasons were given to show that it was presented in a reasonable time after the end of the three month period, the EAT held that no extension of the time limit was justifiable and the applicant was not allowed to proceed. Royal Bank of Scotland Plc v Theobald [2007] EAT Case 0444/06 2. Expert evidence ¶9565 Where expert evidence is required, it is a convention of the employment tribunal that normally only one expert is instructed and both sides agree to instruct the expert jointly. In a case concerning an employee suffering from an undiagnosed back condition, the EAT held that while it was normally desirable that only one expert witness should be instructed, there are exceptions to this rule. In particular, the EAT held, it may be useful to appoint two expert witnesses in cases involving very substantial claims, and where key evidence is disputed.
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