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Industrial Tribunal awards £54,987.79 for unfair dismissal.
Francis Hanna & Co recently represented Mr O'Driscoll, in his claim for unfair dismissal against KPL Contracts Limited & M&P Bradley Limited and BSG Civil Engineering. Mary Gavin of our office dealt with the hearing over the course of three days in November 2013 and the Tribunal issued its decision on the 27th January 2014.
This case concerned the application of The Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 and the question of whether the claimant had been permanently assigned to a contract which was the subject of a service provision change.
Mr O’Driscoll worked for KPL Contracts since 1st October 2010 and his duties involved heavy manual labour in the laying of service pipes and cables. During the course of his employment he sustained an injury at work and was off work for a period of time. Upon his return to work he was given light duties.
His employer argued before the Industrial Tribunal that Mr O’Driscoll had been moved permanently to a particular contract to accommodate his need for light duties. Some three weeks later KPL Contracts Limited lost that contract to another competitor, the second and third named respondents.
The tribunal found that Mr O’Driscoll was not permanently assigned to the contract and that his assignment to the gang working on that contract was a temporary measure to permit him to carry out light duties. The tribunal commented that “no oral or documentary evidence was presented as to the process by which the first respondent’s list of employees allegedly eligible for transfer was drawn up.” The tribunal further commented that it was surprising that the HR manager of KPL Contracts Limited was unable to assist “despite the fact that subsequently he engaged in correspondence with the second respondent asserting that the employees identified on the list were eligible for transfer.”
In its findings the Tribunal stated “the first respondent had abandoned the claimant after 1 November 2012 and by its conduct the first respondent effectively dismissed the claimant. No statutory dismissal procedure was followed consequently the dismissal was automatically unfair.”
The tribunal went on to say “the first respondent had not only disregarded its obligations under the contract of employment with the claimant but it was also obstructive in its approach to providing information to the second respondent which might have enabled the issue to be clarified in November 2012 without the claimant losing his job.”
Mr O’Driscoll was awarded his loss of earnings to the date of the hearing, plus 52 weeks pay to compensate him for future loss. The Tribunal then applied the maximum uplift of 50% to his losses as it was considered just and equitable to do so. The full award amounted to £54,987.79.
The outcome of this case serves as a stark reminder to employers to carefully consider the implications of the Service Provision Change Regulations and highlights the importance of following the statutory dismissal procedure. If you are either an employee or employer and require advice on any of the issues raised above please contact us at firstname.lastname@example.org or call us on 280 9024 3901 and a member of our employment law team will be happy to answer your queries.
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Full Judgment can be found at bailii.org
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‘No-win no-fee’ best option if legal aid must go, say lawyers - apil.org.uk (04/07/2013)
Lawyers have warned the Northern Ireland Executive to preserve access to justice for injured people above all else in its plans to scrap legal aid for money damages cases.
UK-wide not-for-profit group the Association of Personal Injury Lawyers (APIL) says it cannot see the rationale behind the plans, but urges ministers to focus on ensuring an appropriate alternative for injured people to enable them to fund legal cases.
"This is a money-saving exercise, even though currently the wrongdoer puts the costs back into the legal aid pot, not the taxpayer, so the logic behind these plans is perplexing,” said Martin Hanna, APIL's Northern Ireland representative.
“But if legal aid is no longer to be available for injured people who need to make a claim for damages, then a 'no-win no-fee' system of funding is the best option to ensure ordinary people of ordinary means can still have access to justice,” he went on.
A 'no-win no-fee' approach to funding cases would mean the losing defendant pays the legal costs of a case, and is one of the suggestions made by the Department of Justice for Northern Ireland (DoJNI) for replacing legal aid in its recent consultation on the matter.
“Nobody asks to be injured, so the burden of pursuing justice should never lie with the victim,” said Martin. “And the justice system's priority should be that victims can pursue the redress they need and to which they are entitled”.
The Association of Personal Injury Lawyers (APIL) has criticised the Northern Ireland Executive for having not decided whether or not the list of family members who can be receive bereavement damages will be extended.
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The cost of acting unfairly when it comes to disciplining an employee is clear from the decion of the Tribunal in the attached Decision. "The fact that the Tribunal awarded a career long loss is significant and justified in this case", said Gerry Daly, our Employer Law Partner who represented the Claimant in this case.
A copy of the Judgement can be downloaded directly from our website.
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Francis Hanna and Company succeeds in its fight for workers whose employer did not want them to have their annual entitlement to 28 days holidays. The Industrial Tribunal holds in favour of the employees saying:-
"We regard it as reprehensible of an employer to mislead employees in this way. An employer is in a position of relative strength compared to employees in that the employer is in a position to know, or to find out, what the basic requirements of the law are in relation to annual leave. Essentially, the employer in these cases said that the employees were not getting their 28 days leave even though the employer knew that this was required by the Working Time Regulations. In these circumstances, it would not be just and equitable for the employer simply to have to pay a day’s pay for each day lost: there must be an element of penalty to reflect the seriousness of such a breach of a fundamental right."
Gerry Daly, our Employment Law Partner says, "It was a particularly satisfying result because it is a victory for employees whose employer was behaving like a 17th Century mine owner. These days employment rights are protected in European Law and can be enforced."
The Judgement can be obtained from the Industrial Tribunals and the Fair Employment Tribunal Northern Ireland website. Please input Case ID 01553/11IT.
Alternatively, the Judgement can be downloaded directly from our website.
The UK Supreme Court has made a ruling which could allow thousands of insurance claims by families of people who died after exposure to asbestos.
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People suffering from the asbestos-related lung condition pleural plaques will be able to seek compensation from next week due to new legislation.
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The UK Supreme Court has backed the right of people in Scotland to claim damages for the asbestos-related condition pleural plaques.
One of our Partners, Mr Martin Hanna, said:-
“The UK Supreme Court has said “…the Court should respect the judgment of the elected body [the Scottish Parliament] as to what is in the public interest unless that judgment is manifestly without reasonable foundation.” This is a truly momentous day indeed for asbestos victims in Scotland and for the Scottish Parliament. Like in Scotland, the Northern Ireland Assembly passed The Damages (Asbestos-related Conditions) Bill. This Bill also seeks to re-establish the right for Northern Ireland victims of asbestos related pleural plaques to pursue compensation claims. The Northern Ireland Bill has been put on hold pending the outcome of the UK Supreme Court decision. Today’s ruling by the Supreme Court should now pave the way for victims of pleural plaques in both Scotland and Northern Ireland to be properly and adequately compensated for this terrible condition. Hopefully a Commencement Order enabling the legislation to become law will be enacted quickly in both Scotland and Northern Ireland to enable cases, which have been put on hold for far too long, to be finally determined. Francis Hanna & Company will do everything we can on behalf of victims of all asbestos conditions to ensure they are properly compensated and we will continue to lobby the Minister and The Northern Ireland Assembly about when this legislation will finally become law.”
Marks & Spencer has been fined £1m for failing to protect customers, staff and workers from potential exposure to asbestos.
The Association of Personal Injury Lawyers has warned that victims of injury in Northern Ireland are at risk of being denied full and proper access to justice after a report recommended restrictions should be made to civil legal cases.
APIL spoke out after the Northern Ireland Executive launched a consultation on recommendations to cut legal aid for most personal injury cases and introduce a restricted ‘no-win, no-fee’ system.
Martin Hanna, a Belfast-based lawyer who sits on APIL’s executive committee, said: "Victims of needless injury, whose lives have been shattered, should have the same access to justice as anyone else.
"If legal aid is cut and a restricted ‘no-win, no-fee’ system introduced, some victims of injury whose cases are complex will find it difficult to bring a valid claim. How can that ever be considered fair by a just and moral society?
"The ‘no-win, no-fee’ system which has been recommended by the Access to Justice Review group involves an injured person paying some legal fees out of his damages."
Hanna added: "People don’t choose to be injured, but when negligence happens, the guilty party must surely be held fully to account. Damages are calculated to compensate a victim for his pain and suffering. It flies in the face of the principles of justice for an injured person to pay legal costs out of his damages.
"Instead of potentially restricting access to justice, what Northern Ireland needs is a fair system which provides all victims with the opportunity to pursue the full compensation which they deserve."
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Northern Ireland Pleural Plaque Update (No Link)
The Attorney General for Northern Ireland has referred the Damages (Asbestos-Related Conditions) Bill to the Supreme Court who, we understand, is likely to hear the matter towards the end of June 2011. This means that it looks unlikely that there will be clarity about this Bill for some time to come. We will post any updates regarding this development on our website as and when they happen.
Further information can be found at the Attorney General's website here.
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Victory for Scottish pleural plaques sufferers (No Link)
An attempt by a group of insurers to overturn the Damages (asbestos-related conditions) (Scotland) Act has failed.
The Court of Session rejected an appeal this week by Axa, Aviva, RSA and Zurich, which have been trying to overturn the 2009 Act which allows pleural plaques sufferers north of the border to make claims for compensation.
The court ruled that people with pleural plaques suffer "heightened levels of considerable anxiety" and that the "legislature has resolved that anxiety may constitute a matter worthy of monetary compensation".
One of our Partners, Mr Martin Hanna said:-
“Hopefully these insurers will conclude, following this appeal, that to attempt to challenge the The Damages (Asbestos related-conditions) Bill becoming law in Northern Ireland would be a further waste of time and money. Only time will tell whether or not this will Bill will eventually become law, but we at Francis Hanna & Company will do everything we can on behalf of victims of all asbestos conditions to ensure they are properly compensated.”
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Northern Ireland Pleural Plaques Bill passed (No Link)
The Damages (Asbestos related-conditions) Bill passed its final stage in the Northern Ireland Assembly last week, and is now awaiting Royal Assent.
The Bill overturns the decision made in Johnston v NEI International Combustion Ltd by the House of Lords in 2007, and gives people suffering from pleural plaques in Northern Ireland a means to pursue a claim for damages.
One of our Partners, Mr Martin Hanna, said:-
"This is a truly great day for asbestos victims in Northern Ireland and for The Northern Ireland Assembly. However this is not the end of the matter. I fully expect that the insurance industry, as they have done in Scotland, to challenge the Bill in the courts at every stage and at all costs to try and prevent this piece of legislation becoming law. We at Francis Hanna & Company will do everything we can to help victims of pleural plaques re-establish their right to pursue claims for pleural plaques."
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Redundancy advice for employers.