Calderbank offers - a new decision

August 27, 2010 in Costs, Courts and tribunals

dollarThose of you who know me will appreciate that I have something of a hang-up about costs awards in the employment jurisdiction and, in particular, the place of Calderbank offers.

A decision of the Court of Appeal last week has shed some light about the way in which Calderbank offers will be enforced.  The case – Bluestar Print Group Limited v Mitchell – involved a question about the effectiveness of a Calderbank offer where the employee was offered a financial outcome which exceeded the award made at the end of litigation – but where the plaintiff sought “vindication” – and argued that the Calderbank offer could not be effective unless this need was also realised.

The Court of Appeal reiterated that a “steely” approach to Calderbank offers is required in employment cases, and that – whilst the importance of reputational factors must be taken into account – an offer to pay compensation at a level that is reasonable might well be regarded as conveying a distinct element of vindication to a plaintiff.

In other words, the fact that a plaintiff may be seeking an element of vindication through litigation does not mean that an effective financial offer will be rendered meaningless in the consideration of costs issues.

That, in turn, should act as encouragement for employers to make Calderbank offers, and for the employment tribunals to enforce them (when they are effective) by requiring employees to make payment towards the employer’s costs of litigation.

“Stigma damages” - not clowning around

August 27, 2010 in Courts and tribunals

120px-sad_clownI read an interesting decision of the Employment Appeal Tribunal this week – thanks to a referral from the ever interesting English barrister, Daniel Barnett.

The case – Brown v Careham Hall involved consideration of a concept of “stigma damages”.

In simple terms, the concept is that where a person has been dismissed from a job, the circumstances may be such that it becomes difficult for him or her to obtain another job in the same industry – because of the stigma that attaches to the dismissal.  And, where that dismissal is subsequently proven to be unjustified, should the person be allowed to seek damages in respect of this particular type of disadvantage? 

This decision of the Employment Appeal Tribunal suggests that the concept is not flawed – and can be recognised in a compensatory award.  But, at the same time, the Tribunal makes the valid point that it is the bias – or general unfairness – of the prospective employers which causes the particular loss, and that not all of the blame can be sheeted home to the former employer.

Zombie protesters win their claim - the undead are $165,000 better off!

August 27, 2010 in Courts and tribunals

zombies_79201360Over recent weeks there has been a little bit of publicity given to the creative protests organized by the CTU concerning fairness at work.  Amongst other things, their rallies have involved speeches, musical performances, dancing and other entertainment. 

All of these different things are, however, relatively tame compared to a protest in the United States which has recently resulted in settlement of litigation.  It seems that a group of workers dressed up as zombies to protest “mindless consumerism” in Minneapolis.  They were arrested, but never charged with a crime. 

The zombies sued the city (which was responsible for their arrest) and succeeded in achieving a settlement of $165,000.

Regrettably, there is no indication provided as to how the undead spend their money!

The new changes - where to from here?

July 27, 2010 in Legislation

afekyefca5t14frcauhdbj6cagychgpcasgl0yacal0qowecajqf52dca61q5i9ca551i91cafucigpcamkszpdca0ri6u2cay562zvcagv041yca3o35o1cai8s1iccaqme82ucab460ttcaku344qca8va071It wasn’t difficult to decide on the topic for this week’s lead post:  the changes proposed to New Zealand’s employment laws are significant – and have given rise to a good amount of comment (and a bit of gossip as well!). 

Being fair, I think that most of the proposed changes announced by the Prime Minister had been foreshadowed – such that they could not truly be described as any surprise at all. 

Others were, however, more of a surprise – and they tend to be the ones that are more controversial. 

I have had a careful think about a couple of the particular proposals – and they are the subject of my posts below. 

As always, I hope you enjoy the read.

 

Sickies and mental health - end of days?

July 27, 2010 in Health and Safety, Workplace policies

104px-doctors_stethoscope_2One of the more controversial aspects of the proposed change to employment law concerns the prospect of an employer asking an employee for a sick note after an absence of one day. 

Kate Wilkinson, the Minister of Labour, says that the suggestion that every employee will be asked to provide a medical certificate whenever they are sick is ridiculous.  Amongst other things, the Minister rightfully points out that employers simply won’t want to waste time and money requiring every worker to go and see a doctor (at the employer’s expense) when they have a day off for sickness. 

In contrast, Andrew Little (National Secretary of the EPMU and Labour Party President) says that the measure is impractical, and that “the cuddly nanny state has given way to school ma’am finger-wagging”. 

Rather than being a legal issue, this is probably something of a political question – and one of perception.  You may have your own views about the practicalities of the proposed change. 

What I did think I could offer to the debate, however, is a reflection upon developments in the UK around the presentation of sick notes.  Have a look here to see the way in which legislative amendments have resulted in doctors in the UK being significantly constrained in the information they may provide to employers by way of sick notes – to the point that they are now only allowed to indicate whether a worker is “fit” or “unfit” for work. 

One would think that the obligation of good faith (especially the need to be open and communicative about workplace matters) would require both employees and their doctors alike to be a little bit more forthcoming in the information provided – even where an absence is only for one day.

 

 

Employment advocates - time to regulate?

July 27, 2010 in Courts and tribunals, Mediation and settlement

120px-ivy_mike_-_mushroom_cloudAs least in the minds of some, the announcement that the Government will be taking steps to regulate employee advocates came as something of a surprise.  Not so much to members of the employment law community, however. 

In distinction to most other jurisdictions, employment law allows – people who are not qualified as lawyers to act as counsel in a legal forum.  The practice probably has its origins in the union movement several decades ago – where union advocates were legitimately skilled in advancing points on behalf of their unions – but weren’t necessarily legally qualified. 

What has arisen over the last decade, however, is a more concerning practice – where non-legally qualified advocates act for employee complainants – often on a “no win no fee” basis. 

Lawyers are constrained in their ability to act on contingency fee arrangements – and, amongst other things, are ethically prevented from drumming up litigation where to do so is irresponsible. 

The same constraints are not placed upon advocates, however, and there is a view (at least held by a number of lawyers) that, in this way, advocates are bad for the employment law system. 

In my view, advocates have a legitimate place to play in the employment law jurisdiction – and those of them who act responsibly should have no fear about the introduction of regulation to control their behaviour. 

It would seem, however, that the Government has a view that the actions of some require limitation and control. 

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