John McCririck v Channel 4: was his age a factor?

The tabloid press view of John McCririck (JM) losing his age discrimination employment tribunal claim against Channel 4 Television and IMG Media may be summed up, inaccurately or otherwise, as “nothing to do with his age, everything to do with his personality”. Is this fair? Let’s look at the decision of the employment tribunal.

It seems to have been overlooked, amid all the frenzy, that (a) the tribunal did decide that the 72 year old JM suffered a detriment by not being permitted to work as a Channel 4 racing presenter, potentially tainted with unlawful discrimination by reference to his age, and (b) this served, pursuant to the principles in the well established Igen v Wong decision, to shift the burden of proof onto Channel 4 and IMG. In deciding this, the tribunal noted that fellow presenter Tanya Stevenson, aged 42, was kept on and that four other individuals dismissed at the same time were all over 50.

So how did Channel 4 satisfy the get-out provisions, namely that the treatment was a proportionate means of achieving a legitimate aim? Initially, by persuading the tribunal not to stick at a narrow definition of legitimate aim, namely inter-generational fairness or dignity. The goal of bringing horse racing to a wider audience was held to be legitimate in its own right, and JM’s dismissal was proportionate in that context. It would perhaps be unkind to reproduce further what the tribunal had to say, in turn, about JM’s individual characteristics in reaching that conclusion, even when it considered the difference between his pantomime persona on reality TV and his “gravitas” character when at work on the racecourse.

What conclusions do we draw? Employers may be relieved that this decision shows that even if they have slipped up – or find themselves unexpectedly caught out – in the face of the age discrimination card being played, they will not be on a hiding to nothing and will still have scope to face down the claim. It may still be cold comfort to those employers who will not have Channel 4’s bottomless pockets. But it is difficult not to feel a touch of sympathy for any employees faced effectively with the need to reapply for their own jobs in circumstances where the world has moved on and where their distinctive personal characteristics no longer fall on the right side of the divide. This, however, is a matter of politics rather than law.

Leonard Coppage & Freedom Security v SafetyNet Security [2013] EWCA Civ 1176: victory in the Court of Appeal

In Leonard Coppage and Freedom Security v SafetyNet Security [2013] EWCA Civ 1176, published on 11 October, the Court of Appeal has just confirmed in its reserved judgment why a six month post termination restraint on the solicitation of "any individual or organisation who has during your period of employment been a customer of ours" was a fair and reasonable restraint satisfying long established principles, even though it was not limited to customers of the employer within the employee's final 6 or 12 months of employment before termination.

In emphasising that the courts should not be sidetracked by arguments from merely theoretical or fanciful possibilities, the Court of Appeal carefully noted the fact that SafetyNet was a company with a single branch and 106 customers in its trading history, 98 of whom were live when Mr Coppage left. This was in marked contrast to the circumstances in cases such as Office Angels v Rainer-Thomas, where the company's nationwide presence with 6-7,000 customers at 34 branches counted against a non-solicitation clause where the employee in question had only ever had contact with 100 customers at 1 branch - for all practical purposes this had been a non-competition clause in all but name.

In the present case, it was particularly worthy of note that the non-solicitation clause went on to read "if the purpose of such an approach is to solicit business which could have been undertaken by us". In the Court of Appeal's view, this gave the clause its commercial practical reality. Had any customer left on bad terms, leaving no prospect for SafetyNet to regain its business, the solicitation of such a customer would not have been a breach of the clause.

It is also not to be overlooked that the Court of Appeal concurred with the trial judge's assessment of damages in the sum of £50,000 then and there. The award was neither wrong in the absence of evidence relating to expenses, nor arbitrary. It was based upon acceptable unchallenged general evidence relating to revenue and profitability, and well within the reasonable judgment of an experienced Mercantile Court judge.

All in all, a sound and sensible decision likely to be of particular comfort to small businesses looking for necessary and reasonable protection for their customer bases, without having to fear challenges based on merely technical arguments and smokescreens.

For any advice upon similar circumstances, whether to prevent or to cure, please contact David Cooper.

Termination of Employment: Pre-Termination Negotiations – another ERRA reform

The principle behind the introduction of Pre-Termination Negotiations (PTNs), another law change introduced under the Enterprise and Regulatory Reform Act 2013, is to make it easier for employer and employee to have an off the record discussion about termination of employment on agreed terms.

Such a discussion may anticipate a proposal to enter into a Settlement Agreement, as we must now call what was for many years a Compromise Agreement.

Interestingly, there is no need for there to have been a pre-existing dispute before the PTN discussion is held. On the face of it, the employer only needs to refrain from “improper behaviour” in this setting, to avoid losing the PTN’s protection.

But it may not be that straightforward. The employee might immediately assert that the whole conversation is a breach of trust and confidence, walk out and claim constructive dismissal and breach of contract – and evidence of the PTN would then be admissible. Likewise if the employee stopped the discussion in midstream, invoked a protected characteristic under the Equality Act regime (race, sex, age, disability, orientation, religion) and then argued “hidden agenda” via a discrimination claim. Or if the employee turned the offer down, and then asserted after his dismissal that he had been sacked for whistleblowing.

Theory, of course, may differ from practice. An employee invited to participate in such an off the record discussion may know full well that the writing has been on the wall for some time, and look straight away at the financial terms. But the need for employers to tread carefully here is never going to go away.

Employment Tribunal Fees; Compromise Agreements renamed Settlement Agreements

With effect from 29th July, it will be necessary in most cases for a claimant to pay fees when issuing a claim in the employment tribunal and when a claim is listed for a hearing. The exceptions will call for the claimant to complete a remission application and to satisfy a means test.

The fees in mainstream claims are £250 to issue the claim and £950 for the hearing. Lesser claims for defined sums such as wages arrears will involve reduced fees of £160 and £250 respectively. It is expected to be the case that successful claimants will be allowed to recover their fees from the respondent employer, but this is not mandatory.

It will remain to be seen whether the introduction of fees will serve to reduce the number of claims.

On the same date, Compromise Agreements were renamed “Settlement Agreements”. We may ask why the Compromise Agreement, the long established means of bringing about a clean break to the employment relationship, had to lose its identity at the whim of a politician when there was no call for any such change. However, the clock will not now be turned back, so the age of the Settlement Agreement is now upon us. It may be fair to conclude that we will still hear of Compromise Agreements for some time yet.

SafetyNet Security Limited v Coppage [2012] EWHC B11: how we won an intriguing restraint clauses dispute

 We represented the successful claimant, SafetyNet Security Limited, whose dispute with Leonard Coppage and his company Freedom Security Solutions Limited came to trial in August 2012 in the Birmingham Mercantile Court before HHJ Simon Brown QC. Yasmin Yasseri of No 5 Chambers, Birmingham, was briefed on SafetyNet’s behalf.

The dispute involved alleged breaches of both a 6 month non-solicitation covenant and directors’ duties, in response to which the Claimant sought an injunction.

The decision was taken to the Court of Appeal in March of this year and the Defendants’ appeal was dismissed. Pending the full judgment, we revisit the trial decision (BAILII link to SafetyNet Security Limited v (1) Leonard Coppage (2) Freedom Security Solutions Limited [2012] EWHC B11 here) and some ancillary matters.

1.         The judge rejected the Defendants’ argument that the restraint clause was invalid because it extended to historical customers rather than only customers with whom Mr Coppage had dealt during the last 12 months of his employment. It was considered particularly important that SafetyNet was a relatively small business and that Mr Coppage, a senior individual with a large role, had been “the face” of the company.

2.         Mr Coppage was in any event bound, as a director, by duties prescribed in the Companies Act 2006, specifically the duty to avoid conflicts of interest regarding the exploitation of business opportunities.

3.            SafetyNet had decided to cap its damages claim at £50,000. Having presented material to the court satisfying the judge that its losses were at least that high, this sum was awarded without the need for detailed assessment at a later date. A useful practical illustration of Mercantile Court expertise.

4.         Costs budgeting, a cornerstone of the Jackson reforms, may be perceived as something to fear. But it had its positive effects here, reflecting successful local piloting. Because actual costs had fallen within the budget, the judge made a final costs order straight away, deciding that detailed costs assessment in the traditional manner would be expensive and futile. Quite a precedent.

5.         The action began with an application for an interim injunction at a time when the six month restraint clause had five months left to run. With undertakings in place pending a full trial, the judge fixed an accelerated timetable, thereby ensuring that there was a decision on the merits before the clause had expired. Local Mercantile Court knowledge to the forefront again.

For assistance with restraint clause disputes, please contact David Cooper.

Employment Law Update, Summer 2013

We have just published our Summer 2013 newsletter (click on the leaf for the link), covering: -

The admissibility of an employee’s covert tape recordings in tribunal proceedings;

The reasons for a non-competition restraint clause failing to be upheld;

How fair TUPE will protect employees when an insolvent business is partly sold and partly closed;

Whether a voluntary redundancy scheme can justify age related differences.

If you are in need of any advice specific to your own circumstances, please contact us.