Vol 1 Issue 7 Autumn 2006 Newsletter

Employment News: Part-Time Workers Pension Cases–The EATconsiders Preston and the Tribunals' Information Bulletin No9.

The question of discrimination in relation to access to pension schemes for part time workers has been rumbling on for many years and has been subject to decisions at all appellate levels,including the European Court of Justice.The key question has been whether or not cases fall under article 141 of theTreaty of the European Union.The questions have been considered in a sequence of cases known as the Preston litigation.This article concerns a narrow aspect of the Preston litigation where membership of a pension scheme was optional for full time workers but part time workers were excluded.The EmploymentAp- pealTribunal made the key decision in this respect in the case of Preston & others vs Wolverhampton Healthcare NHS Trust and others(No.3)[2004] IRLR 96.The relevant part of the decision, as far as this article is concerned, is found in paragraphs 30 to 55 and in particular paragraphs 35 and 36.
Following the decision in Preston (No.3) the regional chairman of the Nottingham tribunal, Mr J K Macmillan, prepared and published Information Bulletin – Number 9.
The relevant part is contained in paragraph 7.2 which states:

“Membership for full-time employees not compulsory– part- timers excluded.
Your claim will not succeed in respect of this period of time if you did not join the scheme when the rules later changed to allow you to do so or you only did so after significant delay. This is because your failure to join the scheme when you were allowed to,suggests that had you been a full-timer you would not have joined the scheme during this earlier period of time anyway and therefore you have lost nothing. However there is an exception for applicants who can satisfy a tribunal that they would have joined during the earlier period had they been eligible. This is to allow for special cases such as those where by the time the rules were changed to enable part- timers to join, an applicant was so near to retirement that joining was pointless, or she had already taken out a private pension plan.”

There has been a tendency by employment tribunals to treat paragraph 7.2 as the law.The position has been clarified by the EmploymentAppealTribunal in the case of Dennison v University College of St Mark and St John & others UKEAT/0196/06/DA19 July 2006.The president,Mr Justice Elias, considered an appeal on this point and upon the proper interpretation of para- graph 7.2 of the bulletin. The following points formed part of the Judgment of theAppealTribunal:

(i) Information Bulletin number 9 is guidance taken from the principles in the decision in Preston (No. 3). It does provide a legally sound and practical ap-proach which tribunals can safely adopt.
(ii) It raises a presumption that, if on becoming eligible to join, the Claimant does not join, she would not have joined at the time in question.A Claimant can rebut this presumption by providing evidence that she would have joined at the material time, had this option been available to her. Her conduct both during and after any period of ineligibility is likely to be a very important con- sideration.
(iii) The fundamental question that the Employment Tribunal must address is whether or not she would have joined during the period of ineligibility.Its func- tion is not solely to establish why she did not join earlier.

In Dennison, the Claimant had taken out a private pension plan after being told on two occasions that she could not join the employer`s pension scheme as she worked fewer than 30 hours a week (this being the cut-off point for mem- bership). When the rules changed, the Claimant was encouraged to join the scheme by the personnel department; this broadly coincided with her hours increasing to above 30 hours per week. She was further encouraged to join the scheme when she signed a new contract of employment in 1992. The new con- tract of employment made it clear that she was eligible to join the scheme. The Claimant did not in fact join the scheme until 1995. The case before the Employment Tribunal had an unusual twist in that the Claimant’s evidence changed during the course of the hearing. Contrary to her pleaded case, her oral evidence was not that she did not join because she had a private pension provision, but because she was not properly aware that she could join.The tribunal focused on the reason why the Claimant did not join and not whether she would have joined during the ineligible period.

The EAT was not prepared to say that the claimant would have joined at the earlier stage and was not confident that this was the inevitable result and therefore the case was been remitted back to the original Employment Tribunal to consider the question set out above in the light of the Appeal Tribunal’s decision.

In the Preston (No.3) decision,there is no mention of issues such as closeness to retirement date or alternative pension provision. Accordingly, the reference to these issues in the bulletin must be as examples of matters which could possibly operate so as to rebut the presumption and no more than that. When arguing cases such as these it should be borne in mind that Information Bulletin Number 9 is guidance only and that focus should be on the Preston (No. 3) decision.

Although the question to be answered concerns whether or not the Claimant would have joined in the ineligible period, her conduct throughout the period of employment is important to ascertain what she would have done. Therefore what occurred prior to the rule changes, at the time of the rule changes and after the rule changes should all be taken into account when addressing the crucial question.
The Dennison decision has now been posted on the EAT website.

JamesBax

What Next for Medical Evidence: A review of the chief medical officer's paper on medical evidence in public law children's act cases

This is a summary of the points made in the Report prepared and released by the Chief Medical Officer (CMO) Sir Liam Donald- son at the end of October 2006
“Bearing GoodWitness – Proposals for reforming the delivery of medical expert evidence in family law cases”

Available via www.doh.gov.uk There are 16 recommendations;

1,Provision of medical expert evidence in public law cases should be delivered as a public service consistent with the duties of the NHS
2, NHSTrusts will take on the local provision of experts for this purpose using locally available medical practitioners within the Trust in areas likely to be called
3,The service will be provided on a contractual basis between the Trust and the Courts
4,NHS Human ResourceTeams will include an assessment of the workforce implications of such provision of
5,Collaboration between the DCA and other interested parties 6,The costs to the NHS in providing this facility should be fully met (currently the cost of experts is shared by the LSC and the LocalAuthority)
7,Funding of medical expert witness work should be in line with the cost of NHS work
8,View should be taken as to the best placed public body to com- mission the medical expert witness from the NHS
9,When the commissioning body has been identified considera- tion is to be given to the scope to rationalise the funding system for expert witnesses
10,Consultation with the Law Society and the Medical Royal Col- leges as to how the quality of instruction can be improved
11,Knowledge and skills in relation to court work to be taught at Medical School
12,Development of an accreditation scheme 13, GMC to review its guidance to medical practitioners in rela tion to expert evidence 14,GMC and Family Justice Council to assess the manner in which complaints against doctors will be handled 15,A checklist be used and applied whenever experts are to be
considered and instructed
16. National Knowledge Service to be established to assist the expert witnesses

DAVID THOMAS

Prison Law

These are frenetic times. Illegal immigrants,convicted of seri- ous crimes,washing aimlessly around and at liberty to pounce on an unsuspecting public; still more simply walking out of open prisons, and the Home Office in meltdown.These are the type of stories which are grabbing the headlines on a daily basis,and all this hysteria has a potential knock on effect on the Parole Board,the body charged by the Home Office to exam- ine each and every application for parole and to make recom- mendations to the Secretary of State.

Understandably, a siege mentality is developing, and the need for persuasive advocacy in this field of law is becoming in- creasingly pressing if the interests of the serving prisoner are not to be ignored or underestimated.
In broad terms, the Parole Board is called upon to consider three different categories of applications:

The mandatory life prisoner;
The discretionary life prisoner;
The determinate prisoner on licence.

The work of the Parole Board is often overlooked, and wrongly so. Each case is determined on its own merits, the hearings are often exhaustive,and the prisoner is given every opportunity to state his own case. A myriad of agencies are involved, including the Home Office, prison officers, psychologists and the much put upon Probation Service, all striving for the best possible outcome, and all holding their breath that the decision made is the right one. In every case, only time will tell.
Many of the prisoners applying for release will have served their ‘tariff’ sentence many times over. In one egregious case, the serving mandatory life prisoner had served the fifteen year ‘tariff’ part of his sentence and was still in prison after 37 years. For all intents and purposes, a life behind bars.
As the saying goes, a civilised society is best judged by the way it treats its most disadvantaged citizens, and whilst punishment and deterrence are relevant sentencing factors, and have always been so, release back into the community, with appropriate support and supervision, is an integral part of the duties and responsibilities placed upon those who uphold the virtues and values of a civilised society.
To avoid the‘lock them up and throw away the key’ mentality, these prisoners are entitled to able and persuasive advocacy if justice is to be done. Prison law is often overlooked as an important concomitant to the criminal process, and practitioners who are willing and able to provide such an important service to the most disadvantaged members of society should be encouraged to do so.

For details of those members of Chambers experienced in Prison Law, contact the clerks in chambers.

David Osborne

COMPANY DEBTS AND DIRECTORS` LIABILITY

One problem which occurs on a regular basis is the situation where a small company is operated by a managing director who is also the majority shareholder and often the only active em- ployee of that company.
If the company has become insolvent or this appears likely, when can that Managing Director be found to have become personally liable for the company`s debts?
The answer is not very comforting for the creditor, in the absence of the kind of personal guarantees usually extracted by banks and other lending institutions.

The starting point is the independent legal persona of the company, backed for the last two hundred years by arguments of pub- lic policy and by a plethora of cases from the House of Lords and Court of Appeal. The corporate “veil” will generally only be pierced in a few very specific situations,notably where the direc- tor has accepted personal liability or where the Court decides as a fact that the company has been used as a“cloak” for the activities of the individual director.

It is essential to note that the mere fact that the director holds almost all of the shares,is the only active employee and has himself negotiated the contract upon which the creditor wishes to sue, is insufficient.To establish the ”cloak” status, it is necessary to establish a situation not far short of civil fraud and, of course, that can only be done upon the criminal standard of proof, which is notoriously difficult to satisfy in cases of this nature.
Two cases illustrate situations which occur not infrequently. In the first case, a lady asked a jeweller to value a diamond ring, which he did (in the many thousands of pounds); she then asked the man to sell that ring on commission and was given a receipt in the name of the company which operated the shop concerned. Upon returning some weeks later, she found that the company was insolvent. Could the jeweller (director and major shareholder) be held personally liable, the ring having been “mislaid” by then, in a factual situation which included a later promise by the jeweller to pay the lady some money if she did not go to the police?
The answer depended on whether that later promise to pay was supported by consideration.
This itself involved an analysis of whether a promise not to involve the police was “valuable” consideration or not.The result would depend upon whether the jeweller would have anything to fear at all from civil or criminal proceedings. If the fear were groundless, the promise just might be unsupported by consideration and so be unenforceable at law.

The second example is where a director, sole active employee and major shareholder is moving his substantial assets from the UK to another jurisdiction.The company has creditors banging on the door. Further, it is likely to have no defence to a claim by another company, company X. However, by the time of hearing, it is likely to be insolvent and thus unable to pay any award of damages or costs. Sadly, in such a case, the likelihood is that the veil of incorporation will not be pierced: the fact that the director has profited from the company’s contract and has substantial assets personally will not avail company X. The correct Defendant will be the company and only the company. Those who contract with limited companies do so subject to the strong protection surrounding incorporation and must rely on their own commonsense and commercial judgment and not upon being able to proceed at a later date against the directors.

Ian Millard

Offending on Licence

Sections 116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000 replaced section 40 of the Criminal JusticeAct 1991.Under that section, an offender who was serving a determinate sentence of imprisonment and who was released before the expiry of his sentence (normally at the half way point if the sentence was four years or less) remains at risk of being ordered to return to prison for the remain- der of the unserved term.This is triggered if he is convicted of an im- prisonable offence committed between release and the expiry of the whole term.The court which convicted him of the new offence may order that all or part of the unserved term will be served in addition to any sentence imposed for the new offence. Any sentence for the new offence must be ordered to be served either concurrently with or consecutively to the period for which the offender is returned to prison.

Schedule 32 of the Criminal JusticeAct 2003 repeals sections 116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000 in so far as the provisions apply to persons sentenced under the 2003Act.
Accordingly, it will no longer be necessary for courts to consider the issue of recall where an offender has been convicted of an offence committed during the at risk period.
The Criminal JusticeAct 2003 replaces this aspect of the early release scheme with a set of new rules in sections 244 to 256. However, the transitional provisions preserve sections 116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of sentences of less than 12 months.
However, there remain offenders released from determinate sentences under the previous legislation who remain at risk of being returned to serve the unserved term of their sentences under sections 116 and 117 of the Powers of Criminal Courts (Sentencing) Act 2000.

(A helpful table can be found in the PDF version of this newsletter)

Richard Powell

Crime Update: Court of Appeal Judgement on DTOs

R. v NICHOLAS SLOCOMBE (2006) 1WLR 328; (2006) 1 AllER 670;(2006) CrAppRep 33
The facts are that the Defendant was sentenced to a 12 month Detention and Training Order (DTO) on the 15th August 2000. He was released on the 14th February 2001 (after 6 months), he was never in breach of the training element of the Order and was never recalled. The question for the Court of Appeal was whether a 12 month DTO is the equivalent of 6 months’ or 12 months’ imprisonment for the purposes of the period of registration on the Register of Sex Offenders.
Section 82(1) of the Sexual Offences Act 2003 imposes the length of registration for Defendants convicted of certain offences, dependant on the length of the sentence imposed [Archbold 2005 para.20-267]. [0 - 6 months = 7 years & 6 - 30 months = 10 years]. Section 82(2) halves the periods indicated in 82(1) where the Defendant is under 18 on the relevant date, as was this Defendant. Custodial sentences are further defined in Section 131 of the Sexual Offences Act 2003.[Archbold 2005 para.20-339].

The relevant part Section 131 reads as follows:
“131 Thispart appliesto : (a) a period of detention which a person is liable to serve under a detention and training order, or a se- cure training order,…”

and concludes with the following:

“as it applies to an equivalent sentence of imprison- ment; and references in this Part to prison and im- prisonment are to be interpreted accordingly.”

It was submitted that the crucial words are,‘a period of detentio nwhich a person is liable to serve,’ and ‘an equivalent sentence of imprisonment.’ This, it was argued, indicates that the period to determine the relevant registration period is ONLY the detention element of the DTO.
This interpretation was supported by the contrast shown under other headings such as“(f) a sentence of detention in a young offenders institution, a young offenders institution or a young offenders centre… ”Where the whole term is be considered as relevant. It would, it is submitted, have been open to the legislator to simply put “(a) a detention and training order …” had the intention been to include the training element. Further in the case of R. v B. [2005] Crim. LawReview488, Mr Justice Silber at paragraph 17 quotes Mr Lofthouse stat- ing; “…tha tthe DTO regime is so different from that which applies to those sentenced to imprisonment…” again in paragraph 18 his Lord- ship concludes; “In other words a DTO does not have any form of “license” period.” Clearly a DTO should be construed as being different to a custodial term.

Finally, there was the question raised by the Judge of first instance of the double discount, but as those sentenced to DTO’s are the youngest offenders and we are dealing with the highly stigmatised area of sexual offending, it is not surprising that Parliament sought to differentiate between those younger, lesser criminals subject to DTO’s (s.131(a)), and youths sentenced for more serious offences to detention in a Young Offenders Institution (s.131(f)), and of course adults.
The Court of Appeal held that the trial judge had erred in holding that the Defendant should be treated as if he had been sentenced to a term of more than six months. There were significant differences between the regimes which applied to DTOs and those which applied to ordinary sentences of imprisonment. For practical purposes, the period of detention that a person was "liable to serve" under a DTO was fixed at the date of sentence. The period could not be ex- tended without an order of the court. Under a DTO,an offender was not liable to serve a sentence of detention and training but to serve a period of detention and training,the remainder being a period of supervision. The "period" referred to in s.131(a) [see above] appeared in s.131(a) to s.131(e) of theAct and was dis- tinct from the "sentence" referred to in s.131(f) to s.131(j). The distinction was deliberate. Accordingly, the period of detention that an offender was liable to serve was to be treated not as a reference to the entire term of the DTO but to the period of detention and training itself. In the instant case, for the purposes of s.82(1) of the 2003 Act, the Defendant had been sentenced to the equiv- alent of a sentence of imprisonment of six months. As the Defendant had been under 18 at the relevant date, the notification period was three and a half years from the date of conviction. Since that period had expired as at the date of his release ,his convictions for failing to register were unsafe. Therefore the appeal was allowed.
Gavin Collett represented the Defendant and will be happy to provide further information on request.

Gavin Collett

Spotlight on John Lloyd

ohn Lloyd specialises in Employment and Local Government Law.
John was born in Lesotho, Southern Africa; he went to the Durban High School and then the University of Natal, where he studied English, Politics and Roman and Roman Dutch Law. After graduating, John went into journalism, working for Natal Witness, Drum and, on arrival in the UK, the BBC.
John went into teaching and spent the next thirteen years teaching English in secondary schools. He was drawn into local politics and between 1981 and 1998, he was a Councillor of both Devon County Council and Exeter City Council, where he became Deputy Leader and Chair of the Planning Committee.

John’s Exeter connection started with Exeter University, doing a PGCE in 1966, studying for an M.A. (Education) in 1973 and finally graduating with an LLB (Hons) in 1987. John trained for the Bar at the Inns of Court School of Law and was called in 1988.
As a County Councillor, John met Francis Gilbert (now His Honour Judge Gilbert QC),a County Councillor for the opposition. Together, they worked on various planning and prop- erty matters. This, together with his work with the Police Authority, re-awakened his interest in law and it was during this time that Francis Gilbert offered him a pupillage with him at 15 Southernhay West, Exeter. Following pupillage, John co-founded Castle Chambers in 1989, where he practiced a mix of general common law, crime and family work.In 1995, John joined chambers at 11 Old Square, Lincoln’s Inn,where he began to specialise in civil work, particularly, employment, personal injury and planning. John joined Rougemont Chambersin 2002, from where he continues to practice in Employment law and all aspects of Local Government law including Education, Licensing and Planning and Environ- ment.

Never one to be idle, John is a Bar Council-qualified advocacy trainer, a Civil Mediator (on the Bar Council list of Mediators), and a lecturer in Judicial review at Exeter University. Formerly, John was the Editor of the ILEX Employment Law manual and Local Govern- ment Law. Recently his publications include Malice in Electoral Abuse and OtherTorts of Misfeasance in Public Office (Journal of Commonwealth Law and Legal Education).
When not working, John can be found allotment gardening, watching rugby or playing golf to a handicap of 12. He also sings in a folk choir with his much more musical wife Jenny. Their older daughter Kate is now a solicitor with Meyer, Browne, Row and Mawe in the City and their younger daughter Becca is teaching English to Italians near Florence.
John comments that when he envisaged becoming a barrister, he thought it would mean five days a week in wig and gown. In practice, he spends many a day in corrugated iron sheds (doing planning) or dusty town halls (doing licensing). He remembers particularly an outing to the Scilly Isles. It was a hot day in July. The route was by the fixed-wing plane from Lands End. On the island, he realised he was the only man in a suit. As he walked through St. Mary’s, in barrister-black, he felt like a Marshall in a town where the Queen’s writ did not run, fighting for an extension to the town pub`s licensing hours that was being vigorously opposed by the residents.

John is known for his approachable manner and his emphathetic yet firm approach with clients. His practice covers the whole of the Westcountry and he also has a substantial London following. He is a regular in the appeal courts on various types of cases, involving, for example, judicial review, education and local government matters.

1st October - More Changes to Employment Law

1st October 2006 brought in the latest batch of amendments to our employment law legislation.
The biggest and certainly the most highly publicised change is the coming into force of the long- awaited age discrimination legislation; further information on this is available on chambers` website.
In addition, the national minimum wage annual increases are as follows: £5.35 for those aged 22 or over; £4.45 for 18-21 year olds and £3.30 for 16 and 17 year olds.
There are also changes to maternity rights. Women who were less than 3 months pregnant on 1 October 2006 gain new maternity rights from 1 st April 2007.These include: 6 months ordinary maternity leave plus 6 months additional maternity leave, irrespective of length of serivice; women will be able to do some work whilst on OML without losing their statutory maternity pay and an ability for employers to make reasonable contact with employees on maternity leave. Importantly, employees returning early from maternity leave will have to give eight weeks notice rather than the present 28 days.
Finally, there is an amendment to Section 193 of theTrade Unions and Labour Relations (Consolidation) Act 1992, which now provides that notice of redundancy must now be given to the DTI at least 30 days before giving notice of termination of employment, as opposed to the present time limit of 30 days before the effective date of termination.

Debbie Grennan