News

Mar 1 2001

Employment - Human Rights and General

Contents

Possibly the first case in which the Human Rights Act 1998 ('HRA') was considered.
Recent developments.

De Keyser Limited -v- Miss L Wilson (EAT/1438/00) - 23 March 2001

The facts of the case are that Miss Wilson made an application to the Tribunal for unfair constructive dismissal and breach of contract on the basis that De Keyser had failed to deal with a grievance she had raised, which in turn had resulted in her suffering from stress. The Tribunal later gave directions that Miss Wilson should be seen by an Occupational Health specialist appointed by De Keyser, in order that a report could be produced. The letter of instruction contained sensitive information about Miss Wilson's personal life which De Keyser claimed was the main cause of her stress. However, there was no suggestion that this information had been provided to De Keyser in confidence or as a result of the litigation process.

Upon receipt of a copy of the letter of instruction, Miss Wilson's representatives immediately wrote to the Tribunal objecting to the letter. They claimed that it was prejudicial to their client's right to have an impartial medical examination. At this point, the Regional Chairman of the Tribunal, of his own motion, requested that the parties attend a hearing to determine whether or not De Keyser's Notice of Appearance should be struck out. At the hearing, the Tribunal struck out the Notice of Appearance on the grounds that the proceedings had been conducted in a scandalous manner and in breach of Article 8 [right to respect for private and family life] of the HRA.

De Keyser appealed against this decision.

The issue was whether the Tribunal was right to strike out De Keyser's Notice of Appearance because De Keyser had breached Miss Wilson's rights under Article 8 of the HRA, or at all.

The Appeal was successful. In the Employment Appeal Tribunal's judgement, Mr Justice Lindsay stated that the HRA did not apply for the following reasons:-

The letter of instruction was sent out prior to the HRA coming into force.
No public authority was concerned.
The letter did not contain any confidential material.
The recipient of the letter was bound by conventional medical confidence.

Accordingly, the EAT went on to decide that the Tribunal had erred in law by not considering whether a fair trial of the issues was still possible. They stated that it was open to the Tribunal to have directed that another expert be instructed. During the case, the conduct of the unqualified representative of De Keyser was called into question. As a result, the EAT provided guidelines, containing 13 points, regarding the instruction of experts in Tribunal proceedings. The transcript, containing the above guidelines, can be found on the EAT's website at www.employmentappeals.gov.uk

Recent Developments

Legal aid may soon be available to this year.
In the recent budget, the government announced that it would introduce the right to paid paternity leave for working fathers, extended maternity leave and staged increases in the amount of Statutory Maternity Pay.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

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