A Worrying Precedent
The Court of Appeal will soon be asked to decide how far an employer has to go in order to comply with its duty to inform an employee that they have a legal right. The case of R v R Plant Hire (Peterborough) Ltd v Bailey has worrying implications for solicitors.
On 8 November the Court of Appeal gave R v R Plant Hire (Peterborough) Ltd conditional leave to appeal the judgement handed down in the matter by the Employment Appeal Tribunal on 18 May 2011.
Permission Initially Denied
Permission to appeal from the EAT was initially refused by Lord Justice Rimer on the basis that his Lordship considered the appeal to have no reasonable prospects of success. In his reasons for making refusing permission, Lord Justice Rimer stated that paragraph 2(1)(a) of the Employment Equality (Age) Regulations 2006 (‘the regulations’) required an employer to notify its employee: …of his ‘right to make a request…’. ‘Request’ in that sub-paragraph is shorthand requiring a reference back to paragraph 1(1), where it is explained as meaning ‘a request made under paragraph 5’. The requirement in paragraph 2(1)(a) is therefore to notify the employee of his right to make ‘a request under paragraph 5 [of schedule 6 to the 2006 regulations]’.
R & R Plant Hire requested an oral hearing to have the matter reconsidered.
On 8 November on oral hearing took place before Lord Justice Mummery; Mr Changez Khan of Farrar’s Building appeared on behalf of R & R Plant Hire. Conditional permission to appeal was granted under Civil Procedure Rule 52.3(6)(b) on the basis that there was ‘some other compelling reason’ for the appeal to be heard.
Perhaps notably, his Lordship did not exercise his power to allow the appeal, under CPR 52.3(6)(a) on the basis that the appeal had real prospect of success. Rather, he took into account the fact that this case is giving rise to disputes in other cases and noted the extent to which the ultimate decision has the potential to affect other cases.
One such case is Stuart Burgess v Atkinson & Kirby Ltd. In similar circumstances to those of the present case, the Liverpool employment tribunal held in favour of the respondent company on the grounds that the regulations do not oblige the employer to make reference to the regulations in any notification of intended retirement. Indeed, we are given to understand that the employment judge was so certain in his decision that he awarded costs against the claimant on the basis that the proceedings were misconceived. The outcome of this case will determine whether or not the Liverpool employment tribunal will allow an application for review by the claimant in Burgess.
Implications for Employment Law
Given that the statutory default retirement age has now been repealed, along with the statutory procedures that accompanied it, some commentators ascribe little relevance to R & R Plant Hire on the basis that the fall-out from the final decision will be limited to a relatively short time period. I do not take that view.
Even if claims will be limited in time, the potential number of claims over that time period is not insignificant. There has no doubt already been a considerable number of claims brought as a result of the EAT decision in May of this year. If that decision is upheld, more claims may follow.
Employers can reasonably expect to face claims en masse; employees, or ex-employees, will have little to lose in bringing a claim and, if notices of intended retirement have not been correctly worded, those employees can be reasonably certain of success.
It is also reasonable to anticipate that the tribunals will be inundated with requests to deal with out-of-time claims and will have to take a view as to how to deal with those. This is in addition to those claims that have already been made and have been stayed pending, or not allowed subject to, the outcome of the appeal.
There is then, of course, the value of the successful claims to consider. Given that we are talking about older employees, who may have been working for their employer for many years, basic awards alone are likely to be for significant amounts.
Assessment of the compensatory award will also invariably need to take into account the fact that, given the employees age, there is little likelihood that he or she will obtain alternative employment. Employers will, therefore, be faced with career-long compensation claims. Pension losses will also need to be considered.
The abolition of the DRA on 6 April this year was highly publicised. Employers up and down the country, both large and small, were actively encouraged to take advantage of the DRA while it remained in force, and to utilise the transitional provisions in place which allowed them to retire employees up until 6 April 2012. Employers were consistently reminded of the ever looming deadline for notices of intended retirement to be given. No doubt many are now regretting their decision to utilise the soon to be revoked DRA provisions.
On the other hand, employees who were forcibly retired against their will, will be closely watching for their opportunity to give their retirement funds what is undoubtedly, in the current economic climate, a much needed boost.
Leaving aside those issues, consideration ought to be given to the potential wider implications that R v R Plant Hire may have, both within employment law and in other areas of law. Let us go back to basics and consider the essential issue that this case is concerned with. Essentially, we have a statutory duty on one party (A) to inform or advise another party (B) of its legal rights. At its most basic level, this case is about the scope of that duty; what exactly does A have to tell B?
In R & R Plant Hire the relevant duty, placed on the employer under paragraph 2 of schedule 6 of the regulations, was to: ‘notify the employee in writing of – (a) the employee’s right to make a request…’. His honour Judge Richardson interpreted this (at paragraph 47 of his judgement) to oblige the employer to ‘inform the employee of the conditions which are essential if a valid request is to be made’. Thus, we see a duty to simply notify another person of a right converted by way of judicial interpretation into a duty to advise another person as to the law.
Where else might we find duties imposed on one party to inform another party of their legal rights such as in the present case? The duties imposed on the police in their dealings with the citizenry immediately spring to mind. Doctors, solicitors, pension providers, financial institutions, various public bodies and professional trustees are just a few more of those upon whom duties to inform about legal rights are imposed. If the decision of the EAT in R & R Plant Hire is to stand, any person who is subject to such a duty would be well advised to go back to the statutory provision that imposes it to ensure compliance. We might even go further and recommend that, whether the literal wording of the relevant statutory provision requires them to or not, they ought to set out the details of the legal right in full.
Worryingly, the inevitable consequence of this is that members of the public, who have no legal training (and perhaps even less legal training than the person whom they have a duty to inform), will be advising other lay persons on the law. Do we really want to go there? Where is the line to be drawn?
Watch This Space
Permission to appeal in R & R Plant Hire was only granted on the condition that the appellant company bear the costs of the appeal, regardless of the outcome.
If the appeal does go ahead and is lost, will we see an increase in cases being fought or defended on the basis that: ‘A did not tell me what the law was?’ Should we now, in fact, attach a rider to the age-old rule that ignorance of the law is no defence? Perhaps the rule should now read: ‘Ignorance of the law is no defence unless that ignorance is the fault of another.’
This article first appeared on the Law Society Gazette website on November 18th. If you would like any further information or legal advice in relation to anything discussed in this article please contact Kim Hurley in our Civil Litigation department on (01945) 586612 or email firstname.lastname@example.org