Nature of the procedure

Nature of the procedure: Comm initiates either on its own, or in response to complaint.

    • Comm has acknowledged that citizens’ complaints is a significant source, suggesting procedure contributes to a more participatory Community – Dentist Airdrie
      • Developed standard complaint form in 1999 to facilitate indiv use
    • But also emphasised that enforcement procedure NOT primarily meant as means of redress for indivs, rather it is objective mechanism for ensuring MS compliance – Comm’s discretion in deciding whether to initiate proceedings, and bilateral (not trilateral) nature.
      • Even where there are clear violations, this does not compel Comm to bring enforcement proceedings! Comm still has a discretion, though in a Communication of 2002, Comm itself said if there’s clear evidence it will start proceedings.
    • Hence, the indiv’s role is imprecise and varies.
    • But since establishment of Ombudsman’s office, indivs have complained about Comm’s procedures, and Ombudsman held investigation of own initiative in 1996.
      • Comm stopped practice of failing to inform indiv Cs where case was terminated.
      • In 2002, Comm published consolidated version of internal procedural rules in a Communication, allowing Ombudsman to assess Comm’s performance. Also aided transparency/good admin.
      • ➔ includes standard form for complaints to be submitted to Comm
    • Access to documents: complainants/interested parties often complain of difficulty in accessing docs related to infringement, while Comm uses exception in Reg on access to docs (see previous sup’s notes) on ‘inspections, investigations and audits’. ECJ generally supports Comm.
      • Petrie v Comm, 2001: CFI underscored bilateral nature of infringement proceedings
      • Cf Bavarian Lager II, 2007: CFI held disclosure of docs relating to proceedings closed 6 years ago would not jeopardise Comm’s investigations, hence not within exception.
      • Sweden/API v Comm, 2010: ECJ held there is general presumption that disclosure of pleadings would undermine protection of those proceedings, but rebuttable! Also, after ECJ has delivered judgment for art 258 proceedings, docs relating to Comm’s investigations in Dentist Airdrie and in context of these proceedings are NOT within exception, even if art 260 proceedings are still pending (no presumption of undermining art 260 case)!

 

Comm’s discretion? Concerns that the Comm uses discretion to bring proceedings in arbitrary manner, or unfairly/oppressively. Comm might have political motivations.

    • Art 258(2): indicates that after it issues reasoned opinion indicating breach, Comm has discretion whether to refer to ECJ or not [between stages (3) and (4)].
      • ECJ carries out objective analysis: will only examine if infringement alleged by Comm exists – will not look at Comm’s motives for bringing the action (Comm v UK, 1988). Comm also acts in ‘general interest’, hence does not have to have specific interest!
      • Here, UK tried to argue that Comm was acting for political reasons. But ECJ affirmed Comm has full discretion as to why it will pursue a certain breach.
    • Also generally agreed that Comm has discretion whether/when to issue reasoned opinion.

OVERLAPPING CLAIMS

A dismissed employee may have more than one potential claim against his employer.

WHERE EACH CLAIM CAN BE BROUGHT

Wrongful dismissal The wrongful dismissal action is a breach of contract action which may

be brought as a court action or pursued in an employment tribunal.

Unfair Dismissal The unfair dismissal claim is pursued only in an employment tribunal.

WHAT OVERLAPS ?

UD and WD a dismissal that is both unfair and without proper notice or within a

fixed term can give rise to both an unfair dismissal claim and a wrongful

dismissal action.

Red, UD If an employee is unfairly selected for redundancy, he will be entitled to a

redundancy payment and be able to present an unfair dismissal claim.

Red, UD and WD All three claims of wrongful dismissal, redundancy payment and unfair

dismissal would be available to the employee unfairly dismissed without

proper notice by reason of redundancy.

Short Notice Period In the case of a less well paid employee who is only entitled to a short

period of notice, the unfair dismissal claim is usually more advantageous

as compensation for future loss can extend beyond the employee’ s

notice period.

DEDUCTIONS- As provided by Notary public solicitors in London

WD and UD If both claims are brought, and both succeed, the basic principle is that

compensation will not be awarded for the same loss twice. The tribunal

will deduct the breach of contract damages awarded from the

compensatory award for unfair dismissal.

Red payment and UD

The redundancy payment will be set against the UD award. Usually it will simply offset the basic

award, but if it exceeds the basic award (eg because the basic award has been reduced by

contributory fault) the remainder will reduce the compensatory award. The excess redundancy

payment should be deducted after the other deductions (eg for contributory fault) have been

made.

Red payment and WD

Since a redundancy payment is a reward for past services, and a WD payment is an award for

future loss, a redundancy payment is not taken into account in awarding damages for WD.

A discriminatory dismissal (DD)

If a person is dismissed for reasons relating to sex or race or disability, this is not automatically

unfair but, in practice, will often be found to be unfair.

2

UD and DD

A claim for unfair dismissal may be pursued alongside a discrimination claim. Discrimination

awards are not subject to any maximum figure and can include an award in respect of injured

feelings. In addition, no eligibility conditions need be satisfied.

As against this, the award for UD includes a basic award in addition to compensation.

Alternatively, re-engagement or reinstatement may be ordered.

If both claims are pursued, s 126 of ERA 1996 provides that compensation cannot be awarded

again in respect of any loss or other matter which has already been taken into account in dealing