Legal Update
Summer 2010

Article 1 - Supremes Stop! In The Name Of Love - Derek Marshall

By the time this article is published, the long awaited decision in Radmacher v Granatino [2009] EWCA Civ 649 may be scorching a hole in your desk as you try to get to grips with whether the Supremes have gone for Love over Gold or just Money Money Money? Will prenups bind parties to a marriage no matter how much their only thought at the time was that Nothing Compares To You? Or will the Ch- Ch-Changes of married life mean whatever was agreed at the outset, all of that was just Yesterday? And what of post-nups and separation agreements? Will judges find themselves Stuck In The Middle With You?

There has been a Long and Winding Road to this point. Ancillary relief cases in the eighties and nineties were dominated by the choice between doing just about enough to look after the children, (the Mesher approach - Lets Stick Together) and asking the question, what does the wife need, and if there is anything left over, the husband should think himself lucky (the Martin cases - Whatever You Want).

In the noughties, we started to ask ourselves, let's work out what half is and then try to think of a good reason why that should not be the answer - not so much White but Black is Black. Come the early twenty-tens and a more nuanced approach is evident from J v J: Needs generously interpreted then fairness and sharing, having regard only to the way the parties had organised their lives. A sharing of the misery - Everybody Hurts.

For my part, I doubt that we have reached the end of this Long Road To Eden. If pre-nups and post-nups are the end of the story then there wouldn't be much point in keeping the Matrimonial Causes Act 1973. I suspect that the Supremes will Do Right By Your Woman. But then what do I know - I am just Dazed and Confused!

Article 2 - A Sigh Of Relief Or A Sad Farewell To The Statutory Dismissal & Grievance Procedure... - Gemma Bower

We have now reached the first anniversary of the repeal of the statutory disciplinary and grievance procedures: So the question I ask is, are we pleased to see the back of the old procedures? Many will agree that the old procedures could be a burden and a hindrance.

A review of the Employment Act 2002 concluded that the mandatory nature of the statutory procedures had led to unforeseen consequences, in particular disputes becoming formalised, with lawyers often involved at an early stage. Most, will on first consideration, be pleased that the provisions have been repealed. I was in the position recently where I spent a day at a tribunal arguing over whether or not a redundancy procedure (or rather lack of it) adopted by the dismissing employer was fair. I was left frustrated by the fact that had the procedure commenced just six weeks earlier (and hence had a trigger event pre-6 April 2009) the procedure adopted would have been automatically unfair on several grounds. Hence, there we were spending a day in the tribunal (when the tribunal is already suffering a backlog) arguing over something that would not have been necessary under the old procedure. It was then that I questioned whether the old provisions were so bad after all.

In this particular case not one stage of the old procedure was followed. There was no step one statement, no step two meeting as such and certainly no disclosure of any scores provided to the employee in question. I then asked myself what will happen now with cases such as Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 and GM Davies v Farnborough College of Technology [2008] IRLR 14 where a lack of consultation over the scores given to a particular employee at stage two led to a finding of automatically unfair dismissal (notwithstanding any remedy on appeal). Of course, the answer is one has to turn back to the ordinary principles of unfair dismissal under s98 of the Employment Rights Act 1996 (the ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to redundancy situations).

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