‘Without prejudice’ correspondence or conversations, which take place in a genuine attempt to settle a dispute, cannot then be used as evidence in subsequent legal proceedings. There are a few exceptions, including that the without prejudice rules should not be allowed to hide any clear cases of ‘unambiguous impropriety’, such as blackmail or perjury (lying under oath). Unambiguity is the key – the situation must be clear cut. As such, the without prejudice label will only be lifted very rarely.
The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
Disclosure of Brokers’ Commissions remains very much a live issue within the asset finance industry, and in our last Briefing we suggested some practical steps in Dealing with Broker Commission Refund Claims – Click Here
Since then we have been involved in a number of instructions which has caused us to undertake a thorough review of the case law both in terms of the Wood and Pengully decisions and various other cases, which has given us some encouragement in the approach to be adopted to at least some of these claims.
We recently succeeded in full in a claim for damages for conversion on behalf of a financier which raised the apparently novel point of whether a large Excavator fell within the definition of “motor vehicle”.
In De Lage Landen Leasing Limited t/a Hyundai Construction Equipment Europe Finance v Dring (Manchester Circuit Commercial Court 13 July 2022) both parties were the victim of a fraudulent disposition of the Claimant’s Excavator by the Hirer and/or an associated company.
Financiers have been, together with almost all other litigants, subject to what seems to be an ever-increasing spiral of expense in navigating the various fees and charges payable under the court system, a trend which is been in place now for almost 2 decades.
We thought it is worth highlighting two points which can bring some relief to this situation.
Employers dread the vexatious litigant. Even the most spurious of tribunal claims takes up valuable management time and incurs legal fees to defend. The judgment of the EAT in Attorney General v Taheri will be a salve to those employers who have previously had their fingers burned by a serial complainer. The EAT can make an RPO – an order restricting an employee’s right to bring tribunal proceedings – if the employee has habitually and persistently, and without reasonable grounds, brought vexatious proceedings in the employment tribunal (or EAT) against one or more employers. In Taheri, the EAT has shown that there is a limit to what the employment tribunal system is prepared to accept from a vexatious litigant.
The Agency Workers Regulations 2010 (AWR) are derived from EU law. They aim to strike a balance between protecting agency workers and preserving the benefits of flexibility that using an agency provides to both businesses and workers. The AWR contain anti-discrimination provisions. Agency workers must be given the same basic terms and conditions of employment as direct recruits when they have worked for a hirer for 12 weeks. Regulation 13 gives agency workers the ‘day 1’ right to be told by the hirer about any relevant vacancies, with the aim of giving agency workers the same opportunity as direct recruits to find permanent employment within the business. The information can be given in a general announcement in a suitable place in the hirer’s business.
If an employee wins their claim for discrimination they will be entitled to compensation. That compensation may include a payment for injury to feelings. A case called Vento v Chief Constable of West Yorkshire Police set guidelines for how injury to feelings awards should be calculated.
Cases will fall into three bands: the lower band is for less serious cases of discrimination including one off or isolated acts; the middle band is for serious cases which don’t merit a top band award and the top band for the most serious cases of discrimination including lengthy campaigns.
Regulation 14 of the Working Time Regulations 1998 (WTR) sets out a worker’s right to a minimum of 4 weeks’ paid holiday per year which derives originally from the Working Time Directive (WTD). In a case called Bear Scotland v Fulton, the EAT said that a three-month gap between related deductions in a series will break the chain, meaning anything before the three-month gap cannot be claimed. The Court of Appeal has recently confirmed in Smith v Pimlico Plumbers that a worker’s right to paid annual leave is a single composite right – to leave and to pay for that leave – and strongly challenged the principle set out in the Bear Scotland case.
Victimisation is a word which is often used incorrectly. Victimisation is a particular kind of discrimination which occurs when an employer treats an employee badly (a detriment) because they have done a ‘protected act’ or the employer believes that they have done, or may do, a protected act. That protected act can include bringing a discrimination claim, raising allegations of discrimination, or being a witness in a discrimination claim. The EAT has looked at a case recently where the employment tribunal got things wrong in terms of what could constitute a ‘detriment’.
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