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  • 31

    2020/08

    郑先生于2015年7月份开始在上海某外资电子科技公司工作,担任高级销售工程师,月基本工资12000元,双方签订了三年的 劳动合同,合同期满续签了三年的劳动合同。根据劳动合同附件,销售奖金计算方法如下:销售奖金=销售奖金基数x KPI结果。销售奖金基数:已有客户按回款的1%计算;新客户按回款的3%计算。但该合同附件同时规定,如果劳动合同解除的,郑先生不享有享受奖金。2019年度,郑先生回款的销售额为3475633元。2019年12月20日,公司以郑先生不胜任为由,通知郑先生,双方劳动合同于2019年11月29日终止。郑先生不同意公司的决定,要求单位撤销解雇决定,恢复劳动关系,遭公司拒绝。曾国文律师结束郑先生的委托,经过详细的分析和精心的准备,曾律师于2019年3月30日正式向浦东新区劳动人事争议仲裁委员会申请劳动仲裁。本案的焦点:单位是否有证据证明先郑生不胜任工作,是否有证据证明对先郑生进行了培训及培训后仍然不胜任原工作;劳动合同附件关于劳动合同解除后,郑先生不享有销售奖金待遇的合同条款是否有效。曾国文律师认为:单位没有任何证据证明郑先生不胜任,也没有提供任何证据证明对郑先生进行了针对其不胜任的培训。相反有充分证据表明,郑先生是优秀的销售员工。劳动合同附件关于劳动合同解除,郑先生不享有销售奖金待遇的合同条款,因违反了公平原则,属于排除用人单位责任和劳动者权利的条款,因此无效。被申请人公司代理律师则持相反的观点和立场。上海市浦东新区劳动人事争议仲裁委员会于2020年6月2日做出裁决,支持先郑生关于恢复劳动关系、销售奖金等仲裁请求(见浦劳人仲(2020)办字第1876号
  • 31

    2020/08

    李先生于2015年7月8日开始在上海某外资电子科技公司工作,担任销售工程师,月基本工资8800元,双方签订了三年的 劳动合同。之后,月基本工资增加到9150元。根据合同附件,销售奖金计算方法如下:销售奖金=销售奖金基数xKPI结果。销售奖金基数:已有客户按回款的1%计算;新客户按回款的3%计算。但该合同附件第2.4条规定,如果劳动合同解除的,李先生不享有享受奖金。2019年度,李先生回款的销售额为1403196元。2019年11月29日,公司口头通知李先生解除劳动合同。同年12月20日,公司以李先生不胜任为由,通知李先生,双方劳动合同于2019年11月29日终止。但李先生不同意公司的决定,要求单位解除解雇决定,遭公司拒绝。于是李先生向劳动部门寻求调解,但调解未果。无奈之下,李先生聘请曾国文律师代理仲裁维权。经过详细的案件分析和证据材料准备,曾律师于2019年3月30日正式向浦东新区劳动人事争议仲裁委员会申请劳动仲裁。本案的焦点:1、单位是否有证据证明李先生不胜任工作,是否有证据证明对李先生进行了培训及培训后仍然不胜任原工作。2、劳动合同附件2.4条关于劳动合同解除后,李先生不享有销售奖金待遇的合同条款是否有效。曾国文律师认为:单位没有任何证据证明李先生不胜任,也没有提供任何证据证明对李先生进行了针对其不胜任的培训。劳动合同附件2.4条关于劳动合同解除,李先生不享有销售奖金待遇的合同条款,因违反了公平原则,属于排除用人单位责任和劳动者权利的条款,因此无效。被申请人公司代理律师则持相反的观点和立场。上海市浦东新区劳动人事争议仲裁委员会于2020年6月2日做出裁决,支持李先生关于恢复劳动关系、销售奖金等仲裁请求(见浦劳人仲(2020)办字第1875号
  • 10

    2020/01

    用人单位应该依法为其外籍员工缴纳社保,但上海很多用人单位没有替外籍员工缴纳社保。上海的用人单位认为没有法定义务为其外籍员工缴纳社保,外籍员工也不知道单位有义务为他们缴纳社保。我的一个客户是加拿大公民(简称G), 在上海一家公司工作。自2010年9月至现在,单位从未依法为其缴纳社会保险,他自己也不知道单位有义务为其缴纳社保,直至2019年6月份G和单位发生劳动纠纷咨询我时才被告知。单位不同意缴纳社保的理由:单位没有法定义务为外籍员工缴纳社保,其依据是上海2009年10月10日颁布并实施的《上海市人力资源和社会保障局关于在沪工作的外籍人员、获得境外永久(长期)居留权人员和台湾香港澳门居民参加城镇职工社会保险若干问题的通知》(以下简称“《通知》”)。该通知第一条规定,“与属于参加本市城镇基本养老保险范围的用人单位建立劳动(聘用)关系,并按规定分别办理了《外国专家证》、《上海市居住证》B证、《外国人就业证》、《台港澳人员就业证》、《定居国外人员在沪就业核准证》等证件的外籍、获得境外永久(长期)居留权、台、港、澳来沪工作人员,可以按照相关规定同时参加本市城镇职工基本养老保险、基本医疗保险和工伤保险,并在劳动(聘用)合同中予以约定。”单位代理律师认为,双方之间的劳动合同只约定了根据法律规定为G缴纳社保,没有约定必须缴纳社保,所以单位可以不为G缴纳社保。但我方认为,单位有义务为G缴纳社保,法律依据是《社会保险法》第97条和人力资源和社会保障部颁布的于2011年10月15日施行的《在中国境内就业的外国人参加社会保险暂行办法》的规定。由于双方协商未果,我建议G向上海市人力资源和社会保障局劳动监察总队投诉。G已经就此向劳动监察大队投诉,要求补缴社保。G的用人单位在上海市人力资源和社会保障局劳动监察总队责令下,已补缴了社保。
  • 10

    2020/01

    Mr. Zeng 曾国文,a senior employment attorney,  successfully represented Max in negotiation against his employer in Shanghai, China in November, 2019.Max had been working as arts supervisor with French invested corporation incorporated in Shanghai since February6, 2017. He was paid monthly at the rate of 35000yuan RMB after tax, including housing allowance 6000 yuan RMB. In the sencond half of 2019, the employer began to reduce staffs and offered to pay Max severance pay of one month salary for each year he served as a consideration for he to agree on the termination of employment contract on November 14, 2019.  But the employer rejected to pay him any overtime pay of abouit 80,000yuan. I also found the fact the employer failed to pay basic social insurance premium for Max. I told him that it is an employer's obligation to establish basic social insurance  account and make contribution for alien works in China. But Max did not know and the employer did no think so.After examining all evidential materials to prove claims for overtime pay, I found there was no direct evidences to prove all overtime that Max had worked, but some e-mails sent by Max to his boss, which reports on his overtime and the boss's replys to such emails, which required Max  to take leaves himself for all overtime he worked before the termination of the employment contract. In addition, Max also kept e-mails sent by the boss to give instruction about work task. When I asked Max whether he would like to make the employer establish basic social insurance account and make social insurance contribution for him, he did not have such idea. Therefore, we used basic social insurance issue as a weight when we negotiated overtime pay. In the end, his boss agreed to pay Max overtime pay.
  • 11

    2019/11

    案件基本事实:      上海某建筑装饰公司,将及承包的项目中的电工活分包给熊某,熊某雇佣若干工人干活。朱某是熊某叫来工作的工人,朱某、熊某及发包单位之间未签订任何协议。2018年7月22日,朱某工作时不慎被螺丝刀戳伤右眼,同日至上海市第十人民医院就诊后住院治疗,诊断为:角膜破裂(右眼球破裂伤),右眼孔源性视网膜脱离。仲裁和法院认为熊某和发包单位不存在劳动关系,普陀区人力资源和社保保障局认定为工伤。争议焦点:      发包单位,熊某均承认朱某在工作中发生事故,但都不愿意承担责任。发包单位认为其与朱某不存在劳动关系,熊某则认为,朱某出事那天熊某不在工地,平时的安全都是发包单位负责,朱某的工作安全应该由发包单位负责。之后,朱某及其家人向普陀区人力资源和社会保障局申请工伤认定,但该局认为朱某没有提供任何证据证明其和发包单位之间存在劳动关系为由,拒绝受理工伤认定申请。之后,朱某向普陀区劳动争议仲裁委员申请劳动仲裁,要求确认劳动关系,未得到支持。重新申请工伤认定:      之后,朱某委托上海博拓所曾国文律师代理其处理工伤认定。在曾律师的努力下,2019年9月10日,普陀区人力资源和社会保障局于2019年9月10日正式朱某的工伤认定受理,2019年11月6日做出工伤认定的决定。案件反思:      普陀区人力资源和社会保障局从拒绝受理朱某的工伤认定到受理并认定朱某的眼睛戳伤为工伤,除了律师的努力外,更重要的是执法者的开明,敢于更正错误,正确执行法律。本案工伤发生后,普陀区劳动人力资源和社会保障局的执法人员认为不属于工伤。重新申请工伤认定时,本案工伤认定负责人解晓菲女士,开始也认为本案不存在劳动关系不能认定为工伤,但在律师指出相关法律法规的规定及司法解释之后,解老师耐心倾听,她*终接纳了朱先生的工伤认定申请材料,在和领导商量后,做出正式受理决定,并做出工伤认定。她这种敢于严格执法,敢于矫正之前的错误,按照法律的规定忠实执法的精神,让人敬佩,也是所有执法者学习的楷模。                                                                                                                                      
  • 30

    2019/10

    我*近又代理了一起外籍员工劳动争议仲裁案件。我代理的是外籍员工,他是加拿大人(简称G), 案件基本情况如下(笔者已将单位的真实名称隐去):G与一家外资公司于2010年签订了劳动合同,担任商务服务项目经理,基本工资为20000元,约定依法缴纳社保,劳动合同有效期自2010年9月2日至2015年9月1日止。2013年,外资公司上海分公司与G签订了一份劳动合同,劳动合同有效期自2013年8月1日至2015年9月1日止,职务不变,并签署了承诺书,工龄连续计算,约定依法缴纳社保。2015年9月15日双方有签订了一份劳动合同,岗位为**商务项目经理,约定依法缴纳社保,劳动合同期限自2015年9月2日至2020年9月30日。自2018年5月开始,申请人月基本工资调整为25550元,月生活津贴5000元,加上月午餐补贴483元,月交通津贴90元及节假日补贴;被申请人提供申请人每年人民币18000元的探亲费。2019年初,单位告知G不会继续为他办理签证,G的签证于2019年7月就要到期,同时提出协商解除劳动合同,公司按N+1的方案支付经济补偿金,前提条件是双方不再存在社保和其他纠纷,G同意解除劳动合同,但不接受双方不存在社保纠纷的条款,因为单位从来没有为他缴纳过社保。之后,单位查出G历年用来报销月生活津贴的房屋租金发票中有22张虚假发票,并以此为由要求G主动辞职,否则,单位将按照严重违纪解雇。2019年6月10日,申请人向被申请人提交机票6216.75元及差旅费1104元,但未收到单位付款。同时按*低工资标准支付G的2019年6月份工资。G向单位解释所有房屋租金发票都是委托中介办理的,是否真假不清楚,也没有能力判断。由于自2010年9月至现在,被申请人从未依法为申请人缴纳社会保险,同时考虑到签证马上要到期,申请人于2019年6月27日以单位未依法缴纳社保为由,通知被申请人解除双方之间的劳动合同关系,并要求被申请人依法补交社保,依法支付经济补偿金,依法支付被克扣的工资。2019年7月1日,被申请人出具了离职证明。但被申请人拒绝支付经济补偿金,拒绝依法补交社保,拒绝补发克扣工资等,故申请人向贵院申请仲裁。签于双方无法通过协商方式解决争议,我代理G向上海市劳动人事争议仲裁委员会提起劳动仲裁, 要求:支付劳动合同解除经济补偿金237014元;支付2019年6月份克扣工资21355.1元:支付2019年5月份和6月份生活津贴10000元;支付机票等探亲费用6216.75元;支付差旅费1104元。单位提起了反仲裁请求,要求G返还用假发票报销的生活费128355元。      单位不同意支付经济补偿金的理由:(1)单位没有强制义务为外籍员工缴纳社保,其依据是上海2019年10月10日颁布并实施的《上海市人力资源和社会保障局关于在沪工作的外籍人员、获得境外永久(长期)居留权人员和台湾香港澳门居民参加城镇职工社会保险若干问题的通知》(以下简称“《通知》”)。该通知第一条规定,“与属于参加本市城镇基本养老保险范围的用人单位建立劳动(聘用)关系,并按规定分别办理了《外国专家证》、《上海市居住证》B证、《外国人就业证》、《台港澳人员就业证》、《定居国外人员在沪就业核准证》等证件的外籍、获得境外永久(长期)居留权、台、港、澳来沪工作人员,可以按照相关规定同时参加本市城镇职工基本养老保险、基本医疗保险和工伤保险,并在劳动(聘用)合同中予以约定。”双方之间的劳动合同只约定了单位根据法律规定为G缴纳社保,没有约定必须缴纳社保,所以单位可以不为G缴纳社保。所以,G不能适用《劳动合同法》第38条的规定,不能以单位未缴纳社保为由解除劳动合同。我方认为,单位有义务为G缴纳社保,法律依据是《社会保险法》第97条和人力资源和社会保障部颁布的于2011年10月15日施行的《在中国境内就业的外国人参加社会保险暂行办法》的规定。G已经就此向劳动监察大队投诉,要求补缴社保,上海市劳动监察大队已经受理,目前正在处理之中。仲裁裁决认为:单位有责任为G缴纳社保,但单位愿意补缴社保,单位没有恶意不缴纳社保,所以G不能适用《劳动合同法》38条的规定来解除劳动合同,因此不支持G关于经济补偿金的请求。可劳动合同法第38条没有规定单位只要愿意补缴社保,劳动者就不可以适用该条解除劳动合同!仲裁员对该法条的理解让人震惊。仲裁也没有支持单位的反请求。很遗憾,仲裁裁决书只支持了G的其他仲裁请求,没有支持经济补偿金的请求。仲裁员的思路真有“趣”,让人难以理解。我们对仲裁裁决感到失望。我方已经向法院提起诉讼,我们静待法院开庭审理、公正判决。欲知本案*终结果如何?请继续关注。 
  • 11

    2019/04

    如果你对本判例研讨有兴趣,可以联系我们,我们提供本判例中英文研讨服务。案例材料Case  Materials 上海市第二中级人民法院民事判决书案号:(2015)沪二中民三(民)终字第962号   上诉人(原审原告)张传杰,男,1968年12月27日出生,汉族,户籍地安徽省。   委托代理人陈应廉,上海市恒远律师事务所律师。   被上诉人(原审被告)上海敬豪劳务服务有限公司,住所地上海市。   法定代表人王文清,经理。   委托代理人袁守平,上海利好律师事务所律师。   委托代理人李以一,上海利好律师事务所律师。   被上诉人(原审被告)中海工业(上海长兴)有限公司,住所地上海市。   法定代表人张一兵,董事长。   委托代理人黄建新。   上诉人张传杰因劳动合同纠纷一案,不服上海市崇明县人民法院(2015)崇民一(民)初字第1021号民事判决,向本院提起上诉。本院依法组成合议庭,公开开庭进行了审理。上诉人张传杰及其委托代理人陈应廉,被上诉人上海敬豪劳务服务有限公司(以下简称“敬豪公司”)的委托代理人袁守平,被上诉人中海工业(上海长兴)有限公司(以下简称“中海公司”)的委托代理人黄建新到庭参加诉讼。本案现已审理终结。   原审法院经审理查明,2010年1月,张传杰与敬豪公司建立劳动关系后被派遣至中海公司担任电焊工,双方签订*后一期的劳动合同的期限自2010年1月1日至2014年6月30日。2014年1月13日,敬豪公司(甲方)与张传杰(乙方)签订协商解除劳动合同协议书,双方自愿达成如下协议:一、甲、乙双方一致同意劳动关系于2014年1月13日解除,双方的劳动权利义务终止;二、甲方向乙方一次性支付人民币48,160元(以下币种均为人民币),以上款项包括解除劳动合同的经济补偿、其他应得劳动报酬及福利待遇等…。敬豪公司于2014年1月21日向张传杰支付48,160元。   原审另查明,2014年4月,张传杰经上海市肺科医院诊断为电焊工尘肺壹期。2014年12月10日,张传杰经上海市劳动能力鉴定委员会鉴定为XXX疾病致残程度柒级。   原审再查明,张传杰于2014年11月27日向上海市崇明县劳动人事争议仲裁委员会申请仲裁,要求自2014年1月13日起恢复与敬豪公司的劳动关系。该委裁决对张传杰的请求事项不予支持。张传杰于法定期间诉至原审法院,要求自2014年1月13日起恢复与敬豪公司的劳动关系。   张传杰诉称,2007年10月,张传杰与上海兴旭劳务服务有限公司签订劳动合同,该公司法定代表人是王文清,2010年1月,张传杰被转入公司法定代表人同是王文清的敬豪公司,张传杰自2007年10月起即被派往中海公司担任电焊工。2014年1月13日,敬豪公司与张传杰签订协商解除劳动合同协议书。张传杰提出要求做离职前职业健康检查,其法定代表人王文清承诺签订协议后安排张传杰体检,但第二天即反悔。张传杰经有关部门举报投诉后,敬豪公司才让张传杰做相关体检。张传杰认为双方签订的协商解除劳动合同协议书系敬豪公司提供的格式合同,协议书虽称系张传杰提出解除劳动关系,实是敬豪公司提出解除劳动关系。故张传杰提起仲裁、诉讼,要求张传杰与敬豪公司自2014年1月13日起恢复劳动关系。   张传杰向原审法院提供如下证据:   一、仲裁裁决书一份,据以证明本案已经过仲裁。   二、上海兴旭劳务服务有限公司档案机读材料一份,据以证明该公司的出资人即敬豪公司的法定代表人,该公司注销后,张传杰与敬豪公司签订劳动合同。   三、张传杰与敬豪公司签订的劳动合同一份,据以证明该劳动合同未按照XXX疾病防治法告知张传杰XXX疾病后果的相关情况。   四、解除劳动合同协议书一份,据以证明双方曾约定先签订解除劳动合同协议书,再做体检,张传杰在离岗前未做过离岗体检。  五、闫树彪、丁燕青的调查笔录两份,据以证明敬豪公司向张传杰提出解除劳动合同,解除劳动合同后,继续在原来的工作场所工作,只是换了一个老板。   六、电子考勤表一份,据以证明张传杰一直工作至2014年1月23日,之后无法进入工厂大门。   七、张传杰2014年职业性健康检查一览表、鉴定结论书各一份,据以证明张传杰体检检查出患有XXX疾病尘肺一期。   八、出入证一份,据以证明张传杰被派遣至中海公司工作。   九、养老保险缴费情况一份,据以证明敬豪公司至2014年4月一直为张传杰缴纳养老保险,故双方的劳动关系还存在。   敬豪公司、中海公司共同辩称,张传杰与敬豪公司于2014年1月13日已经达成解除劳动关系的协议,敬豪公司已按协议支付补偿金。现张传杰已离开公司一年多,故不同意恢复劳动关系。   敬豪公司向原审法院提供如下证据:协商解除劳动关系协议书、赔付款明细、汇款凭证、申请各一份,据以证明双方协商解除劳动合同。   中海公司未向原审法院提供相关证据。   张传杰对敬豪公司提供的证据的真实性无异议;中海公司对敬豪公司提供的证据的真实性无异议;敬豪公司、中海公司对张传杰提供的证据一、二、三、四、六、七、八的真实性无异议,对证据五认为证人讲的不是事实。   原审审理中,张传杰表示其在敬豪公司工作至2014年1月23日,是敬豪公司向张传杰提出解除劳动合同的,也未给张传杰做离职体检,故对未进行离岗前职业健康检查的劳动者不得解除或者终止与其订立的劳动合同。敬豪公司表示双方签订的解除劳动合同协议书真实、有效,敬豪公司为张传杰缴纳社保只是想协助张传杰工伤理赔,但不能就此推断双方的劳动关系还存在。   原审法院认为,从事接触XXX疾病危害作业的劳动者未进行离岗前职业健康检查,或者疑似XXX疾病病人在诊断或者医学观察期间的,用人单位不得依照《*******劳动合同法》第四十条、第四十一条的规定解除劳动合同,现双方协商一致解除劳动关系,不属该法第四十条、第四十一条规定的情形,且双方的解除行为系真实意思的表示,张传杰为XXX疾病致残程度柒级,双方的劳动合同也已到期,现敬豪公司不同意恢复劳动关系,张传杰要求自2014年1月13日起恢复与敬豪公司的劳动关系,于法无据,法院不予支持。据此,依照《*******劳动合同法》第三十六条、第四十一条、第四十二条之规定,判决如下:张传杰要求与上海敬豪劳务服务有限公司自2014年1月13日起恢复劳动关系的诉讼请求不予支持。   上诉人张传杰不服原审判决,上诉称,双方虽于2014年1月13日签订了《协商解除劳动合同协议书》,但由于敬豪公司的缘故,直到2014年12月张传杰才被鉴定为“XXX疾病致残程度柒级”。敬豪公司未安排其在离职前体检,违反了《*******XXX疾病防治法》的相关规定,故之前不能解除劳动合同。因此,请求法院支持其上诉请求,判令自2014年1月13日起恢复与敬豪公司的劳动关系。   被上诉人敬豪公司、中海公司共同辩称,双方系经协商一致解除劳动合同,张传杰经鉴定为“XXX疾病致残程度柒级”,与其解除劳动关系不违反《*******劳动合同法》的相关规定,故不同意与张传杰恢复劳动关系。综上,请求驳回张传杰的诉请。   本院经审理查明,原审查明事实属实,本院予以确认。   本院认为,本案的争议焦点为从事接触XXX疾病危害作业的劳动者未进行离岗前职业健康检查的,用人单位与劳动者协商一致解除劳动合同是否当然有效。根据《*******劳动合同法》第四十二条第一款的规定,从事解除XXX疾病危害作业的劳动者未进行离岗前职业健康检查的,用人单位不得依照该法第四十条、第四十一条的规定解除劳动合同。此款规定虽然没有排除用人单位与劳动者协商一致解除劳动合同的情形,但根据《*******XXX疾病防治法》第三十六条的规定,“对从事接触XXX疾病危害的作业的劳动者,用人单位应当按照国务院安全生产监督管理部门、卫生行政部门的规定组织上岗前、在岗期间和离岗时的职业健康检查,并将检查结果书面告知劳动者……对未进行离岗前职业健康检查的劳动者不得解除或者终止与其订立的劳动合同”。因此,用人单位安排从事接触XXX疾病危害的作业的劳动者进行离岗职业健康检查是其法定义务,该项义务并不因劳动者与用人单位协商一致解除劳动合同而当然免除。本案中,双方于2014年1月13日签订的《协商解除劳动合同协议书》并未明确张传杰已经知晓并放弃了进行离岗前职业健康检查的权利,且张传杰于事后亦通过各种途径积极要求敬豪公司为其安排离岗职业健康检查。因此,张传杰并未放弃对该项权利的主张,敬豪公司应当为其安排离岗职业健康检查。在张传杰的XXX疾病鉴定结论未出之前,双方的劳动关系不能当然解除。2014年12月10日,张传杰被鉴定为“XXX疾病致残程度柒级”。根据《工伤保险条例》第三十七条规定,职工因工致残被鉴定为七级至XXX伤残的,劳动、聘用合同期满终止,或者职工本人提出解除劳动、聘用合同的,由工伤保险基金支付一次性工伤医疗补助金,由用人单位支付一次性伤残就业补助金。因此,鉴于双方签订的劳动合同原应于2014年6月30日到期,而张传杰2014年12月10日被鉴定为“XXX疾病致残程度柒级”,依据《工伤保险条例》的规定,用人单位可以终止到期合同,故张传杰与敬豪公司的劳动关系应于2014年12月10日终止。综上,依照《*******XXX疾病防治法》第三十六条、《工伤保险条例》第三十七条、《*******民事诉讼法》第一百七十条第一款第(二)项之规定,判决如下:   一、撤销上海市崇明县人民法院(2015)崇民一(民)初字第1021号民事判决;   二、上诉人张传杰与被上诉人上海敬豪劳务服务有限公司自2014年1月13日起恢复劳动关系至2014年12月10日止。   二审案件受理费人民币10元,由上诉人张传杰负担。   本判决为终审判决。                                                               审  判  长     翁  俊        审  判  员     叶旭初        审  判  员     谢亚琳        书  记  员     何  冰          二○一五年十一月十二日 
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    2019/04

    This is one of British employment cases. If you want to learn the case through seminar, please do not hesitate to contact us.Case materialsPatel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1843Appeal against an EAT decision that overturned a finding by the ET that the Appellant had been dismissed and therefore could bring a claim on unfair dismissal against the Respondent. Appeal dismissed although after written submissions, the appeal was allowed for another reason.The Appellant was originally dismissed by a letter of 2 April 2014 from his employer, the Respondent, but was informed by a letter dated 24 June 2014 that his appeal had been successful. The Appellant was not satisfied with the terms of the letter of 24 June 2014, which left important matters unresolved, and so refused to return to work. On 17 July 2014 the Appellant filed claims with the ET, including a claim of unfair dismissal. At a preliminary hearing, the ET identified as a question for determination whether as at 17 July 2014 there had been a dismissal of the Appellant so as to allow him to bring that claim and answered that question in the affirmative. The ET held that the decision on the Appellant's appeal under the contractual procedure did not undo the effect of the earlier summary dismissal, because there was no contractual provision which bound the Appellant to accept that a successful appeal under that procedure had the effect of wiping out the previous dismissal. The EAT allowed the Respondent's appeal, considering that in law it had been the Appellant's own choice not to return to work with the Respondent, rather than having been dismissed. The Appellant appealed to the Court of Appeal.The Court of Appeal initially dismissed the appeal saying that it is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout. However, the court invited the parties to make written submissions as to whether the appeal should be allowed on the basis that the EAT should have addressed whether or not the Appellant had been constructively dismissed because the Respondent had not satisfactorily resolved the allegations against the Appellant. The appeal was allowed on this new basis.Pre-ordr the 2018-19 edition of the Emp;oyment Tribunal Remedies Handbook and get a free digital edition worth £40Case Nos: A2/2016/2615 and A2/2016/2616Neutral Citation Number: [2018] EWCA Civ 1689 and [2018] EWCA Civ 1843IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNALHHJ RICHARDSONUKEAT/0348/15/DM and UKEAT/0006/16/DM Royal Courts of JusticeStrand, London, WC2A 2LLDate: 17/07/2018 and 08/08/2018Before:LORD JUSTICE McFARLANESIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALSandLORD JUSTICE SALES- - - - - - - - - - - - - - - - - - - - -Between:Patel (Appellant)- and -Folkestone Nursing Home Ltd (Respondent)- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Matthew Jackson (instructed by Leigh Day) for the AppellantThe Respondent did not appear and was not representedHearing date: 9 May 2018- - - - - - - - - - - - - - - - - - - - -JudgmentLord Justice Sales: 1. This appeal is concerned with the legal effect of a contractual disciplinary appeal procedure in an employment contract in relation to the dismissal of an employee for misconduct, whose appeal is then allowed by the employer pursuant to that procedure. 2. The employee (the appellant) was originally dismissed by a letter of 2 April 2014 from his employer (the respondent), but was informed by a letter dated 24 June 2014 that his appeal had been successful. The appellant was not satisfied with the terms of the letter of 24 June 2014, which left important matters unresolved, and so refused to return to work. On 17 July 2014 the appellant filed claims with the Employment Tribunal ("ET"), including a claim of unfair dismissal. At a preliminary hearing, the ET identified as a question for determination whether as at 17 July 2014 there had been a dismissal of the appellant so as to allow him to bring that claim. 3. The ET answered that question in the affirmative, on two bases. First, it held that the decision on the appellant's appeal under the contractual procedure did not undo the effect of the earlier summary dismissal, because there was no contractual provision which bound the appellant to accept that a successful appeal under that procedure had the effect of wiping out the previous dismissal. In addition, the ET held that the letter of 24 June 2014 failed properly to address critical matters of concern to the appellant in relation to one of the allegations which had been made against him (that he had falsified patient records at the care home), so there was no clarity about the outcome of the appeal as regards that allegation and as regards the basis on which the appellant was to return to work. This too meant that the appellant was not obliged to return to work and was entitled to treat himself as having been dismissed by the date he filed his claims on 17 July 2014. Accordingly, the appellant was entitled to proceed with his claim for unfair dismissal.4. The ET then determined that claim on the merits and held that the appellant had been unfairly dismissed. The ET made an award of compensation in his favour. 5. On the respondent's appeal to the Employment Appeal Tribunal ("EAT"), further authority was cited by the respondent on the issue whether the appellant had been dismissed by the relevant date. The EAT allowed the respondent's appeal, on the footing that the effect of the respondent's letter of 24 June 2014, stating that the appellant's appeal under the contractual procedure had been successful, was that he should be treated as not having been dismissed at the time of the dismissal letter of 2 April 2014. According to the EAT, this meant that the appellant had not been dismissed at all by the time he issued his claim on 17 July 2014. He was therefore not entitled to claim for unfair dismissal. It seems that the EAT considered that in law it had been the appellant's own choice not to return to work with the respondent, rather than having been dismissed.6. The principal issue on this appeal concerns the first ground of decision by the ET, which was overturned by the EAT. In my view, however, a further point arises and ought also to be addressed. This concerns whether the appellant in fact also made a claim in his claim form that he had been constructively dismissed by 17 July 2014, by treating the employment relationship at an end by reason of the respondent's failure in its letter of 24 June 2014 and thereafter to address properly and rectify matters in relation to the allegation of falsification of records which had been made against him. I deal with that at the end of my judgment. Factual background7. In January 2008 the appellant commenced employment with the respondent as a care assistant working in the respondent's nursing home. His contract of employment incorporated the respondent's Employee Handbook. This included a section setting out a disciplinary procedure.8. For the purposes of this appeal, the material part of the disciplinary procedure is that concerned with appeals by an employee in respect of disciplinary action taken against him. It provides as follows:"Capability/Disciplinary Appeal Procedure1. You have the right to lodge an appeal in respect of any capability/disciplinary action taken against you.2. If you wish to exercise this right you should apply either verbally or in writing to the person indicated in your individual Statement of Main Terms of Employment.3. An appeal against procedure will normally be conducted by a member of staff not previously connected with the process so that an independent decision into the severity and appropriateness of the action taken can be made.4. If you are appealing on the grounds that you have not committed the offence then your appeal may take the form of a complete re-hearing and reappraisal of all matters so that the person who conducts the appeal can make an independent decision before deciding to grant or refuse the appeal.5. You may be accompanied at any stage of the appeal hearing by a fellow employee of your choice. The result of the appeal will be made known to you in writing, normally within five working days after the hearing.6. We reserve the right to allow third parties to chair any formal hearings."9. In March 2014 the appellant was charged with two disciplinary offences, said to amount to gross misconduct: (i) that he had been found asleep whilst on duty and (ii) that on the night of 21 March 2014 he had falsified the records of certain residents at the care home by pre-recording that they had slept through the night and had also failed to record the checks he had in fact made in respect of them at particular times during the night. The appellant's defence to (i) was that he had been asleep during his break, and not during his working hours. His defence to (ii) was that this way of filling in the resident records was common at the nursing home and records in this form in this and similar cases had been signed off by senior managers without criticism. 10. There was a disciplinary hearing on 28 March 2014. After this the respondent sent the appellant its letter dated 2 April 2014 stating that both charges had been found to be proved, that they constituted gross misconduct, and dismissing him with immediate effect and without notice. In its letter, the respondent said that it would refer the appellant's name to the relevant regulator in respect of care homes (the Disclosure and Barring Service, "DBS") in relation to charge (ii), because residents had been put at risk by his actions in failing to maintain complete and accurate records. This was obviously a serious matter for the appellant.11. The appellant indicated that he wished to appeal in relation to both charges against him, pursuant to the contractual appeal procedure. The appeal hearing took place on 8 May 2014 before a Mr Shah. By the letter from the respondent dated 24 June 2014, the respondent informed the appellant that his appeal had been allowed. 12. The letter was, however, in curious and unsatisfactory terms. It referred only to charge (i) and stated that the finding on the appeal was that the appellant had indeed been asleep during an unpaid break, as he had claimed, and that this was not in breach of any company rule or procedure. It did not refer at all to charge (ii), make any substituted finding in relation to that charge or say that the notification to the DBS regarding the appellant had been withdrawn. The letter stated that the appellant would be contacted as soon as possible to arrange a date for him to return to work. It concluded, "You have now exercised your right of appeal under our procedures and this decision is final". 13. Mr Shah's evidence to the ET, which it accepted, was that on investigation in respect of charge (ii) he came to the conclusion that the appellant's conduct was not as serious as it had appeared at first, in that he had not 'made up' false entries in the residents' records of events which did not in fact happen, as matters transpired, and that in light of the appellant's good employment record it was not a matter which merited dismissal. However, Mr Shah did not tell the appellant this and, as I have said, it was not explained in the letter of 24 June 2014 by which the appellant's appeal was allowed. The issues in relation to charge (ii) were simply left up in the air.14. The appellant was not happy about this. He was also unhappy about the way in which the disciplinary procedure had been handled by the respondent. He maintained that Mr Shah had not been the appropriate person to deal with his appeal. In subsequent exchanges with the respondent, the appellant considered he did not receive satisfactory responses about these matters. He did not return to work, taking the view that he was not obliged to do so and could treat himself as having been dismissed.15. The appellant commenced proceedings in the ET claiming unfair dismissal, wrongful dismissal and wrongful deduction of holiday pay due to him. At first, the respondent conceded that the appellant had been dismissed. However, when the proceedings came to a hearing the respondent was permitted to withdraw that concession and to argue instead that, by reason of the exercise by the appellant of his contractual right of appeal and the successful outcome of that appeal, there had been no valid or effective dismissal of the appellant. 16. In its decision, however, the ET dismissed this submission by the respondent. The ET was referred to the decision of this court in Roberts v West Coast Trains Ltd [2004] EWCA Civ 900; [2005] ICR 254 but distinguished it, holding at [10]-[11] that the contract terms governing the right of appeal in the present case were silent as to the consequences of a successful appeal and no relevant additional terms could be implied into the contract to say what the consequences should be. In particular, the ET held that the successful disciplinary appeal by the appellant did not have the effect of reviving his contract of employment so as to prevent him from being entitled to claim that he had been unfairly and wrongfully dismissed. 17. The ET also set out a further reason at [12] for finding that the appellant had been dismissed as at the date he filed his claim on 17 July 2014, based on the lack of clarity in the respondent's letter of 24 June 2014. Allegation (ii), regarding the falsification of records, was the more serious one, but the letter did not address it and just left it hanging in the air. The ET said:"If the respondent was going to revoke the [appellant's] dismissal that more serious allegation needed to be addressed so that the [appellant] knew where he stood on it. I find that what the letter amounted to was an offer for the [appellant] to return to work on an unspecified basis and left the significant issue of the second allegation undealt with, particularly as to what its future effect on the [appellant] might be. It did not for example tell the [appellant] that the second allegation too had been dismissed or tell him that no [DBS] report had been made. There was no clarity as to the outcome of the appeal as regards the second allegation and as regards the basis on which the [appellant] was to return."18. Having held that the appellant had been dismissed as at 17 July 2014, the ET proceeded to find that the appellant's claims were made out. 19. The ET made an order for, among other things, payment of the basic award and a compensatory award in relation to the unfair dismissal, but significantly reduced by reason of contributory fault on the part of the appellant in relation to his poor and inappropriate record-keeping and by a failure properly to mitigate his loss by seeking employment elsewhere. The amount of the compensatory award was increased by 20% pursuant to section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRA"), because the ET found that the respondent had failed to comply in material respects with the ACAS Code of Practice on Disciplinary and Grievance Procedures (March 2015) ("the ACAS Code of Practice") in its handling of the disciplinary procedure in the appellant's case.20. The respondent appealed against the ET's decision that, notwithstanding the appellant's successful disciplinary appeal, he had been dismissed by the respondent by the date of the appellant's claim filed with the tribunal and also against its decision to increase the award made pursuant to section 207A(2) of TULRA. The appellant cross-appealed in relation to the deductions in relation to the monetary award in his favour for contributory fault and failure to mitigate. 21. On 1 June 2016 a hearing took place before the EAT (HHJ Richardson). This was treated as a full hearing of the respondent's appeal, but was only a preliminary hearing in relation to the appellant's cross-appeal, to see if there were reasonable grounds for that cross-appeal and if so to manage the cross-appeal. In the event it was agreed that the preliminary hearing of the cross-appeal should await the outcome of the hearing of the full appeal by the respondent. This was on the ground that, if the respondent succeeded on its appeal in establishing that there had been no relevant dismissal of the appellant, the cross-appeal would be redundant.22. In its notice of appeal to the EAT, the respondent for the first time drew attention to and relied on the decision of the EAT (Langstaff J, President) in Salmon v Castlebeck Care (Teesdale) Ltd [2015] ICR 735 in support of its submission that the effect of the appellant's successful appeal against his dismissal pursuant to the contractual procedure was that he could not be regarded as having been dismissed, with the result (so the respondent contended) that his claims for unfair dismissal and wrongful dismissal must fail. The respondent argued that Salmon showed that there was no requirement for the appeals procedure expressly to give the right to reinstate or impose any particular sanction: it was implicit in the terms of the employment contract governing disciplinary appeals that a successful appeal against dismissal would overturn the dismissal and revive the employment contract. HHJ Richardson accepted this argument and overturned the decision of the ET on the dismissal point. The judge concluded that the reasoning of the EAT in Salmon compelled him to come to the conclusion that by virtue of the contract provision and the appellant's successful appeal, the appellant could not be regarded as having been dismissed by the respondent by the date the appellant filed his claim, 17 July 2014. Therefore, the respondent's appeal in relation to the application of section 207A(2) of TULRA did not arise (though the judge indicated that it would not have succeeded) and the appellant's cross-appeal was rendered otiose, and so was dismissed without any examination of the merits.23. The appellant now appeals to this court in relation to the EAT's ruling that there had been no relevant dismissal in this case by 17 July 2014, with permission granted by Elias LJ. The sole ground of appeal before us is that the EAT was wrong to reverse the ET in relation to its decision that there was no term implied in the contract of employment that a successful appeal would automatically revive a terminated contract, and was wrong to find in place of this that such a term was implied as being "inherent in the provision of an appeal." Also, if he succeeds in his appeal, the appellant asks this court to grant permission to appeal in relation to his cross-appeal and to allow his appeal in relation to that, so that his cross-appeal can be remitted to the EAT for it to resume the preliminary hearing which it curtailed previously, and to consider whether there are reasonable grounds for the cross-appeal to proceed in the EAT.24. The respondent has had notice of the appeal to this court but has chosen not to appear or to be represented. The court has had the benefit of very helpful submissions made by Mr Jackson, acting pro bono, for the appellant. In view of the absence of representation for the respondent, Mr Jackson sought very properly to draw our attention to points and arguments which might be raised in favour of the respondent, of which the court should be aware. In addition, after the hearing the court conducted further research itself and invited the parties to make written submissions in relation to additional authorities which it drew to their attention. Mr Jackson, for the appellant, did this. The respondent chose not to take advantage of this opportunity. Discussion25. In my judgment, the appellant's appeal in relation to the dismissal issue should be dismissed, so far as concerns the ground of appeal which has been put forward. In my view, so far as this aspect of the case is concerned, the EAT was right to follow and apply the approach in the Salmon case. 26. I consider that the short answer to this ground of appeal is that it is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout. This is not a matter of implying terms, but simply the meaning to be given to the words of the relevant contract, reading them objectively. 27. By including a contractual right of appeal in the employment contract, the employer makes available to the employee a facility to seek to overturn the disciplinary decision made against him and to have the dismissal treated as being of no effect. If the appeal is successful, then subject to any other contractual provisions, the employee is entitled to be treated as having never been dismissed, to be paid all back pay and to have the benefit of all other terms of his contract of employment through the relevant period and into the future. Those terms include the usual implied duty of an employer to maintain trust and confidence. 28. Conversely, if the employee exercises his right of appeal under the contract and does not withdraw the appeal before its conclusion, it is obvious on an objective basis that he is seeking to be restored to his employment and is asking and agreeing (if successful) to be treated as continuing to be employed under his contract of employment for the interim period since his previous dismissal and continuing into the future, so that that dismissal is treated as having no effect. It is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not. 29. If an appeal is brought pursuant to such a term and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal. 30. An employment contract involves significant obligations on each side, and each party has a clear interest in knowing where they stand in relation to the contract and those obligations, as to whether they exist or not: see Geys v Société Générale, London Branch [2012] UKSC 63; [2013] 1 AC 523, [57]-[59] per Baroness Hale of Richmond JSC. If a contractual appeal is brought against a dismissal for disciplinary reasons, a reasonable person in the shoes of the employee will expect his full contractual rights and employment relationship to be restored without more as soon as he is notified that his appeal has been successful. He would not think that any further action by him was required, in terms of saying that he agrees that this is the effect. He has asked for that to happen by the very act of appealing. Similarly, a reasonable person in the shoes of the employer will understand that this is the effect of a successful appeal as soon as the parties are notified of the outcome of the appeal, without any question of a further round of debate about whether the employee is prepared to accept this or not. The reason is the same: the employee has already asked for that to be the outcome by the very act of appealing. 31. Mr Jackson pointed out that there may be other reasons why an employee might wish to exercise a right of appeal under a disciplinary procedure. Mr Jackson accepted that, of course, the employee may wish to get his job back, effectively by putting the clock back so that he is treated as not having been dismissed. But Mr Jackson says that the employee might simply wish to clear his name so as to improve his chances of getting other employment elsewhere in the jobs market, without wishing to go back to the original employer. Or the employee might regard it as expedient to bring a disciplinary appeal, as a way as protecting his right to full compensation for unfair dismissal, since if he does not he will by virtue of section 207A(3) of TULRA potentially be exposed to a penalty of a deduction of up to 25% of any monetary award due to him. This is because paragraph 26 of the ACAS Code of Practice states that "Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision"; and section 207A(3) says that a deduction may be made if the employee does not comply with such a code of practice. Therefore, says Mr Jackson, the mere fact that an employee commences an appeal under a contractual disciplinary procedure cannot be taken as some kind of offer by him to waive reliance on his dismissal. Nor can it be taken as an acceptance by him that he must take back his old job if his appeal is successful, agreeing thereby to treat this dismissal as if it had never happened.32. However, in my view these other possible reasons why an employee might wish to invoke a contractual appeal process are collateral to the object of having such a process included in the contract of employment. That object is, that the employee is contractually entitled to ask the employer to reopen its previous decision to dismiss and to substitute a decision that there should not be a dismissal. Where a contractual appeal is brought, that is the obvious purpose of the appeal, judging the matter objectively. The fact that an employee might have other motives for seeking to appeal does not affect the interpretation of the contract.33. There is strong authority which supports this analysis. In West Midlands Cooperative Society v Tipton [1986] AC 536, a case involving a contractual right of appeal against a decision to dismiss the employee, the employer dismissed the appellant employee with immediate effect by letter dated 25 February 1982 and thereafter, in breach of contract, refused to entertain an appeal. The House of Lords held that a refusal by an employer to allow an employee to appeal could be found to justify a finding of unfair dismissal in respect of the dismissal which had taken effect on 25 February 1982. Lord Bridge (with whom the other members of the appellate committee agreed) was explicit about the effect of a simple contractual term allowing for a disciplinary appeal, at p. 542:"A preliminary point must be considered, which arose from questions put to counsel in the course of the argument. A possible view might be that when an employee whose contract entitles him to a domestic appeal is summarily dismissed, the dismissal does not take effect until the refusal to entertain an appeal or its ultimate rejection effectively confirms the dismissal. If this view were right, Mr. Lee [counsel for the employer] readily concedes that his case would be unarguable. [What is now section 97(1)(b) of the Employment Rights Act 1996] provides that "the effective date of termination" in relation to an employee whose contract of employment is terminated without notice, means "the date on which the termination takes effect." The application of this provision was considered by the Court of Appeal in J. Sainsbury Ltd v Savage [1981] ICR 1 where an employee had been summarily dismissed on 21 February 1978. His domestic appeal was heard on 30 May and dismissed by letter dated 1 June 1978. He could only establish that his total period of employment was sufficient to qualify him to make a claim of unfair dismissal if it included the period from 21 February to 1 June 1978. The Court of Appeal held that it did not. My noble and learned friend, Lord Brightman (then Brightman L.J.), quoted at p. 5 with approval the following passage from the judgment of the Employment Appeal Tribunal [1979] ICR 96, 102: 'In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered, then the dismissed employee is to be treated as being 'suspended' without pay during the determination of his appeal, in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.'I entirely agree with this reasoning in the absence of an express contractual provision to the contrary effect. In the instant case the effective date of termination of the appellant's contract of employment was 25 February 1982."This passage is obiter so far as concerns a case where the domestic appeal is successful. But it is powerful persuasive authority concerning the meaning and effect of an appeal provision in a contract of employment. In the contractual term in the case before us there was no express provision to disapply the usual interpretation of a term providing for a contractual right of appeal as stated by Lord Bridge.34. Roberts v West Coast Trains Ltd [2004] EWCA Civ 900; [2005] ICR 254 concerned the dismissal of an employee as a disciplinary sanction for misconduct. His employment contract incorporated a disciplinary procedure which included a right of appeal to a superior official of the employer, against "the punishment to be inflicted and/or the interpretation of the facts of the case"; it was expressly provided that, on an appeal, the employer could substitute different punishments, including a demotion ([17]). The contract of employment therefore included an express provision which modified the usual effect of a contractual right of appeal, namely that if an appeal were successful the employee would be restored to the same employment relationship as before. The employee appealed under the contractual procedure against his dismissal and secured partial success, in that a sanction of demotion was substituted for the sanction of dismissal. However, the employee did not return to work and was eventually treated as having resigned. In the period after the employee was dismissed but before his disciplinary appeal was heard, he brought a claim in the ET for unfair dismissal, relying upon the original decision to dismiss him. His claim was dismissed by the ET on the basis that by the time that his claim came on for hearing, after his disciplinary appeal had been upheld, he could not be regarded as having been dismissed. 35. The employee's appeal to the EAT was dismissed. As Mummery LJ explained in this court at [22]: "It was held by the Appeal Tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position."36. The reasoning of the EAT in Roberts, in which Elias J (as he then was) presided ([2003] UKEAT 0312 03 2407), was expressly endorsed in strong terms by the Court of Appeal at [20], [22] and [24]. The judgment of Elias J repays study as a particularly clear analysis of the position where a contractual right of appeal is invoked by an employee. I set out paras. [13] to [18] in that judgment:"13. The Tribunal found in terms, as we have seen, that the demotion did not involve a termination of the original contract and that no new contract was entered into following the demotion. That, [counsel for the employer] submits, and we accept, was a conclusion that they were entitled to reach. Indeed, it is in accordance with the analysis in the Beckett case that the demotion was pursuant to a specific power given in the contract, as it was in BBC v Beckett [[1983] IRLR 43]. We do not say that the demotion can never in any circumstances give rise to a dismissal; no doubt there will be cases where it may have that result if there are significant changes in terms and conditions of employment, at least, if there is no contractual power to effect the demotion which is accepted by an employee. In addition, in some cases, as indeed in the Beckett case itself, the demotion may give grounds for the employee alleging constructive unfair dismissal. However, that argument was never advanced in this case. 14. Mr Clement, for the Appellant, submits that the Savage and Beckett decisions can be distinguished on two principal grounds. First and foremost in this case, the Originating Application was lodged prior to the appeal being considered. Mr Clements submits that the question of whether or not there has been a dismissal must be considered as at the date when the Originating Application was lodged. At that date, there had been no reinstatement in any position and accordingly the dismissal of 6 November should stand. As Mr Clement accepts, the logic of this argument is that, even where the reinstatement is in fact complete, the employee will, nonetheless, be entitled to make a claim for unfair dismissal arising out of the original determination of the contact, provided that the Originating Application is lodged prior to the appeal being heard. In those circumstances, the employee will be entitled at one and the same time to pursue both the appeal and any claims he may have for unfair dismissal. Of course, the fact that he may be reinstated will affect the remedies that he would be entitled to receive. 15. Plainly, if the employee, having lodged the appeal, withdraws from it, then the employer cannot seek to determine that appeal. In those circumstances, the employee can rely upon the original decision to dismiss. But, in our judgment, if the employee chooses to keep the appeal alive, then he takes the risk that if he is subsequently reinstated in employment, his unfair dismissal claim will be defeated, and that is so even if he lodges an Originating Application prior to the appeal being determined. We say this for a number of reasons. First, nothing in any of the authorities suggests that the rights are crystallised at the date when the Originating Application is lodged. On the contrary, it seems to us that cases such as the Tipton case, to which we have made reference, indicate that the date of termination should not be considered as a watershed so as to exclude matters arising thereafter. Similarly, it seems to us that there is no reason to treat the date of lodging the Originating Application as a watershed either. Take this specific example: in Tipton, the House of Lords held that an employer may be considered to have acted unfairly if he refuses to permit the employee to pursue a right of appeal. Is the Tribunal to be deprived of considering that evidence if, in order to protect his position, the employee has lodged an Originating Application immediately following the termination of his employment, and the employer's refusal to permit the appeal to be pursued is not made until after that date? In those circumstances, we have no doubt that the Tribunal would be entitled to have regard to that evidence, notwithstanding that the refusal of the employer would have, in that case, occurred after the Originating Application had been lodged. Similarly, in this case, it seems to us that the Tribunal must have regard to the effect of the successful appeal, albeit that the Originating Application had been lodged by that date. 16. Second, the argument of Mr Clement would lead to certain arbitrary results. It may be quite fortuitous whether the appeal is determined before or after the Originating Application is lodged. Take this case; the original appeal was to be heard on 30 December, before the Originating Application was lodged. At the employee's instigation, the appeal was adjourned and, in the event, it was not heard until after the Originating Application was lodged. It does not seem to us to be satisfactory in principle that the employee in the one case should be entitled to pursue an unfair dismissal claim but not in the other. 17. Finally, Mr Clements submitted that the principle in Sainsbury v Savage could apply only in circumstances where the employee could be said to have been successful in his appeal. Whether he has been successful, he submitted, would depend upon the grounds on which he mounted his appeal and the decision of the appeal body. If the appeal were wholly successful, then he accepted that the effect of reinstatement would be to cancel the original termination but he submitted that if it were not wholly successful then the original termination would stand. In this case, it was not wholly successful because of the sanctions that were imposed by the appeal body. Mr Clement accepted that the logic of this argument is that if the employee appeals against a dismissal on the grounds that he has committed no misconduct at all, and the appeal body reduces the dismissal but nonetheless imposes some sanction such as a warning, then, in those circumstances, the appeal could not be said to have been successful and the original dismissal would stand. 18. For this proposition, he relies upon certain language in the authorities which do talk of the Appellant succeeding in his appeal and thereby being reinstated, for example Sainsbury v Savage itself. With respect, it seems to us that this argument cannot be right. First, it is a wholly imprecise principle for determining whether or not the original termination stands. It would involve a careful consideration of the precise grounds on which the appeal had been mounted and the effect of the decision of the appeal body. Second, and perhaps more importantly, the question of success or otherwise of an appeal has no bearing at all, it seems to us, on the statutory question, namely whether the contract of employment has been terminated. It is plain from the authorities that if an employee is reinstated, that is taken to have retrospective effect. The notion that it has retrospective effect if the employer is satisfied with the outcome of his appeal, but not if he remains dissatisfied, has no grounding in any principle or rationale whatsoever. Finally, this argument is, in any event, inconsistent with the authority of the Beckett case itself. Mr Clements submitted that, in that case, the Appellant was only appealing against the penalty that had been imposed upon him. He said that he was not appealing, as was the Appellant in this case, against the very finding that there had been any misconduct at all. But we think that cannot be right, as is clear from paragraph 8 of the Decision. For these reasons therefore, we are satisfied that the Tribunal properly considered itself bound by the authorities in Sainsbury v Savage and BBC v Beckett." 37. As Elias J points out at [13], absent a term permitting the employer to reinstate the employee in a lesser post, an attempt to demote the employee as the result of an appeal may well give grounds for the employee to claim constructive dismissal as at the time the result of the appeal is announced. In my view, the same will be true if there is some feature of the employer's handling of the appeal which constitutes a breach of another important term of the contract, including the duty to maintain trust and confidence. 38. Also, I agree with the view of Elias J at [15] that if the employee exercises his right to have a domestic appeal and "chooses to keep the appeal alive, then he takes the risk that if he is subsequently reinstated in employment, his unfair dismissal claim will be defeated, and that is so even if he lodges an Originating Application prior to the appeal being determined." Elias J sets out cogent reasons for such a view. This court endorsed his analysis when the case went on appeal.39. Before us, Mr Jackson emphasised that in this court Mummery LJ (in a judgment with which the other members of the court agreed) said at [28] that all the points he had dealt with turned on the particular contract in the case, and that little was to be gained from comparing different cases. In particular, Mummery LJ said that little was to be gained from comparing the case before him with the decisions in Savage and Beckett. 40. However, I think it is clear from the context that the point being made by Mummery LJ was that the contract in Roberts was unusual, in that – unlike the employment contracts in Savage and Beckett - it included an express power on the part of the employer to demote the employee in consequence of an appeal by him. Mummery LJ was not seeking to suggest that courts and tribunals should ignore relevant guidance to be gleaned from Tipton, Savage and Beckett in a more usual contractual setting.41. Mr Jackson invited us to focus on para. [24] in the judgment of Mummery LJ. In that paragraph Mummery LJ began by stating that he agreed "with everything said" by Elias J. He added that he would simply highlight the following points:"(1) The employment contract of Mr Roberts included provisions in the staff handbook, in the Onboard Terms and Conditions and in the Procedure Agreement, which entitled West Coast Trains to impose a range of sanctions when disciplining an employee for misconduct. That range could be imposed either at first instance or on an appeal brought by an employee, who was dissatisfied by the first instance decision. (2) The range of sanction included dismissal. That was the sanction imposed at first instance and was effective at the date when Mr Roberts presented his complaint of unfair dismissal to the Tribunal. (3) The range also included reduction in grade or demotion. That was the decision ultimately taken on Mr Roberts's appeal. (4) The outcome of the appeal procedure initiated by Mr Roberts, and not withdrawn by him before the completion of the appeal procedure, was that the decision to dismiss should be replaced by a decision to demote. (5) The terms of Mr Roberts' employment contract permitted West Coast Trains to impose such a sanction in place of the earlier decision to dismiss, so that they could retrospectively achieve a position where he was not dismissed for the purposes of bringing an unfair dismissal claim. (6) It was within the terms of that contract that the appeal decision was taken. It was not necessary to effect an express reinstatement to the position of chef previously held by him, nor was it necessary to make an offer to him to enter into a new contract in order to continue Mr Roberts' contract of employment."It seems to me that in this passage Mummery LJ was going out of his way to emphasise that the outcome of the appeal in Roberts turned upon the special term in the employment contract, which permitted the employer to allow the appeal and demote the employee without that involving any breach of contract.42. Mummery LJ said this at [25]-[27]:"25. In my view, there was a misunderstanding on the part of Mr Roberts in thinking that, when he received the notification of the appeal decision, he was being made an offer, which he could accept or reject. What was being notified to him, as was made clear in a later letter, was the continuation of the contract. He acted as if the contract was being continued when sick notes were submitted by him after the date of the appeal decision. 26. In summary, the effect of the decision on the appeal was to revive the contract of employment terminated by the earlier decision to dismiss. That was something which Mr Roberts had agreed could be done by West Coast Trains, as employer, as part of the disciplinary process, including the appeal procedure which he himself had initiated. 27. The fact that he had made a complaint of unfair dismissal to the Tribunal at a date when he was still in a state of dismissal, and before the appeal had been heard, does not affect the legal position. It is legally irrelevant. It would have been relevant, if he had never instituted an appeal and/or if he had instituted an appeal, he had withdrawn his appeal before a decision was made. In such circumstances, the initial dismissal would have stood. I am unable to accept the submission made by Mr Clement that somehow the date of the issue of the proceedings freezes the position on jurisdiction, and that it is not permissible for the Employment Tribunal to look at the real world as it existed at the date when the case came on before them at the hearing."43. Mummery LJ's analysis in his judgment is contrary to the submission of Mr Jackson in this case. In our case, the appellant lodged an appeal and did not withdraw it before it was found to be successful, even though that happened after he had lodged his claim with the tribunal. According to the analysis of Mummery LJ, in line with the view of Elias J, the success of the appeal means that the appellant's employment contract was treated as continuing down to that point, with no dismissal. In line with Mummery LJ's indication in Roberts at [25], the success of the appeal in the present case did not constitute an offer which the appellant could accept or reject. Similarly, in my view, the appellant's success on his appeal did not give rise to an option for him to continue with the employment or not. When his appeal was successful, the appellant was bound by the result to the same extent as the respondent. 44. Later authorities are to the same effect: McMaster v Antrim Borough Council [2010] NICA 45; [2011] IRLR 235, Northern Ireland Court of Appeal, and Ladbrokes Betting & Gaming Ltd v Ally [2006] UKEAT/0260/06; [2006] All ER (D) 77, Silber J. In McMaster, the Northern Ireland Court of Appeal held that if a contractual disciplinary appeal succeeds, the employee is reinstated with retrospective effect; it is not necessary to effect an express reinstatement to the position previously held by the employee, nor to make any offer to him to continue the contract of employment. Applying that analysis, the court found that the employee was entitled to say that he had not been dismissed at the time of his original dismissal, but only at a later date after his successful appeal. The result was that he was in time to bring his claim of unfair dismissal. In Ally, Silber J applied the same analysis to conclude that the employee who had brought a domestic appeal under a contractual appeal process was bound by the result of that appeal, which meant that his contract of employment was treated as having continued throughout and he could not seek to rely on the original dismissal. These decisions were in accordance with the guidance in the authorities referred to above and were decided correctly. 45. It follows that I consider that Langstaff J, sitting in the EAT in the Salmon case, was correct in his analysis of the position where there is an ordinary contractual right of appeal, without any express qualification of the kind referred to by Lord Bridge in Tipton. Langstaff J found that such an ordinary right of appeal was incorporated in the employment contract in that case on the facts: see [2015] ICR 735, at [20]. His statement at [28] that the effect of a successful appeal in such a case is now well established in law is amply justified, including by the authorities referred to above. They establish that, in the context of an ordinary employment contract and absent some express qualification, the meaning to be given to a provision setting out a contractual right of appeal against dismissal is that the employment relationship is revived, without more, so as to extinguish the original dismissal. The authorities indicate that this is the natural meaning of the words of the provision, used in that context. 46. It also follows that I consider that the decision of HHJ Richardson in the present case was correct, so far as concerns the ground of appeal.47. However, that leaves the issue of the unsatisfactory nature of the respondent's letter of 24 June 2014 by which the appeal was allowed. In my view, it is strongly arguable that it was unacceptable, and a breach of the respondent's implied duty to maintain trust and confidence within the employment relationship, that the respondent failed by its decision to resolve the most serious of the allegations against the appellant. It is also strongly arguable that it was a breach of that term for the respondent not to withdraw any complaint it had made in respect of that matter to the DBS and to explain that it had done so to the appellant. The appellant asked the respondent to clarify the position, which the respondent failed to do. As appears from its decision at [13], quoted above, it seems to me that the ET considered that the respondent had acted in a wholly unacceptable way in these respects.48. In accordance with the analysis above, in particular at [13] in the judgment of Elias J in Roberts, set out above, a serious breach of contract by an employer in its handling of a contractual appeal may justify the employee in treating himself as having been constructively dismissed. It is arguable that, on a fair reading of the appellant's grounds of claim in this case, this was part of the case he was seeking to advance. If such an analysis is available and is correct, it means that the decision of the ET that the appellant had been dismissed by the time he made his claim on 17 July 2014 would be correct. It is also arguable that this is covered by the ET's reasoning on the dismissal point and also that it was an aspect of the case which the EAT ought to have addressed when it made its decision.49. Had the respondent participated in the appeal process, these points could have been put to its counsel. As it is, I think that the just course is to give directions to allow the respondent and the appellant to have an opportunity to make submissions whether this analysis, which is arguable, is available and is correct and whether the appeal ought in fact to be allowed on the basis of this alternative analysis. The issue is reasonably straightforward and clear, and it is proportionate at this stage for the resolution of this aspect of the case to proceed on the basis of written submissions.Conclusion50. For the reasons given above, I would dismiss the appeal in respect of the existing ground of appeal. However, I would invite the parties to make written submissions as to whether the appeal should be allowed for different reasons, as explained above. Sir Ernest Ryder, Senior President of Tribunals:51. I agree.Lord Justice McFarlane:52. I also agree.ADDENDUM Lord Justice Sales:53. After handing down the main judgment, above, the court received written representations on behalf of the appellant in accordance with directions made by the court. The respondent chose not to make any representations in response. It is fair and in accordance with the overriding objective that the court should now proceed to a final determination of the appeal on the basis of the written submissions received.54. The appellant drafted his claim as set out in the ET1 form himself, as a litigant in person. Accordingly, it is appropriate to read the ET1 to identify the substance of the matters being complained of, rather than expecting fine precision in the formulation and pleading of the claim. In my view, on a fair reading of the claim it included a complaint that the appellant had been unfairly dismissed by reason of the unsatisfactory way in which the respondent dealt with the outcome of the appeal, which led to the appellant refusing to return to work. That is to say, the claim included a claim that he had been constructively dismissed. 55. I also consider that on a fair reading of the ET's decision, in particular at [12], set out above, it accepted that, if it were necessary to refer to it, that claim of constructive dismissal was made out. In my opinion, that reading of the decision is supported by the care with which the ET identified the issue before it as whether the appellant had been dismissed by 17 July 2014 (i.e. when the claim was presented, after the date of the alleged constructive dismissal), rather than simply saying that the issue was whether the appellant had been dismissed on 2 April 2014 (the date of the original purported dismissal). 56. The respondent's notice of appeal to the EAT correctly identified at paras. 4 and 5 the two distinct bases for the ET's decision on the jurisdiction point regarding whether there was a relevant dismissal by 17 July 2014, including that the ET had found that the letter of 24 June 2014 was not sufficiently clear and that the appellant had acted reasonably in refusing to return to work on the basis of it. This was the ruling which covered the claim of constructive dismissal. The notice of appeal addressed both these points. The respondent made the alternative submission that the ET's finding that the appellant acted reasonably in refusing to return to work in light of the unsatisfactory nature of the letter of 24 June 2014 was perverse. 57. Unfortunately, the EAT in its judgment only addressed the first ground of decision by the ET on the jurisdiction point in a satisfactory way. In relation to the question of constructive dismissal, the alternative basis of reasoning of the ET on that point, I consider that the EAT's reasoning at [38] to address it was inadequate. The EAT said that the letter of 24 June 2014 announcing the result of the appeal was clear; it was sufficient that the letter expressly stated that the earlier dismissal decision was revoked and that the appellant was entitled to start work again. I respectfully disagree. The letter was unclear and failed properly to deal with ground (ii) of the grounds for dismissal, as explained above. It was not sufficient for the letter simply to say that the earlier decision was revoked and that the appellant was entitled to start work again. In my judgment, by leaving the issues in relation to ground (ii) completely up in the air as it did, the respondent acted in breach of the implied duty to maintain trust and confidence in the employment relationship and in consequence the appellant was entitled not to return to work and to treat himself as constructively dismissed in the way he did. There was no error of law in relation to the ET's determination that there was a dismissal prior to 17 July 2014 on this basis. The EAT should have dismissed the respondent's appeal in relation to that aspect of the ET's decision. 58. Accordingly, I would allow the appellant's appeal on the basis of this alternative analysis, as foreshadowed in the main judgment above. The respondent has been given a fair opportunity to deal with this issue and it is just and appropriate to give the appellant permission to rely upon this as part of his grounds of appeal in this court. The ET was right to find that it had jurisdiction to determine the appellant's claim for unfair dismissal. In consequence of allowing the appeal, the appellant should also be granted permission to appeal to this court in relation to his cross-appeal in the EAT, which was dismissed by the EAT on the basis that it held that he had not been dismissed by the respondent. The appellant's appeal in relation to this should also be allowed and the case remitted to the EAT to consider whether there are reasonable grounds for the cross-appeal to proceed in the EAT. 59. Since the respondent's second ground of appeal in the EAT, regarding the effect of section 207A(2) of TULRA, was considered by HHJ Richardson and rejected by him for what appear to me to be sound reasons, and the respondent has not suggested the contrary on this appeal, I would simply substitute an order in relation to the respondent's appeal to the EAT that the whole of that appeal is dismissed. I think it would involve disproportionate cost and tribunal time to allow the respondent to seek to raise further arguments in the EAT regarding the ET's decision in relation to the application of section 207A(2) of TULRA. Sir Ernest Ryder, Senior President of Tribunals:60. I agree.Lord Justice McFarlane:61. I also agree.
  • 11

    2019/04

    If you are interested in learning the case, do not hesitate to contact us.Case materialsMr. Shi was employed by LYS Corporation, a state-owned enterprise in Shanghai and began to work in October, 2002. In 2008, LYS Corporation was purchased by HD Corporation, a state-owned enterprise in Shanghai and turned into a subisidiary of HD Corporation. In December 30, 2010, Mr. Shi signed employment contract with HD Corporation (“Employer”) and worked as an assistant of manager of headquarter of administrative affairs. In October 1 ,2011, both parties renewed the employment contract and entered into open-ended employment contract attached with the supplementary agreement specifying his annual salaries is 114,648 yuan(RMB). After restructuring of corporatal governance, Employer had quite a few redundent employees holding high positions. In June, 2016,  Employer introduced a position competition program for positions of all levels, including general manager of department, which required all the incumbent shall compete for their current position. Any other employees may compete for higher positions. If the incumbents failed in higher position competition, they shall compete for other positions at lower level. Mr. Shi missed enrollment for competing for his position as assistant general manager due to his illness. Therefor, Employer arranged for him to compete for the lower positions. But Mr. Shi rejected this arrangement and remained in his original office. For Mr. Shi did not attend position competition, so Employer unilaterally arranged Mr.Shi to work as project administrator which is at lower level and paid less, and sent him a written notice for such end.  But Mr.Shi declined the demotion and still remained in the original office. Employer paid Mr.Shi remuneration according to the remuneration standard for the project administrator post. Mr.Shi were not satisfied and then sent his disagreement on this. In March 2,2017, Mr. Shi filed petition to Changning Labor and Personnel Dispute Commission for arbitration of following claims:i. To order Employer pay the amount of 10614yuan deducted;ii. To order Employer pay owned fixed year-end bonus,namely 13937.Employer's argument.First, Employer has right and freedom to adust employees' position through introducing position competition program and its employees has obligation to obey.Second, Mr. Shi are aware of the position competion program and did not attend it. His position was obtained by other employee through fair competition. Therefore Employer has right to arrange him to a project administrator of lower level. Third, according Employer's policies and supplementary agreement signed, Mr. Shi shall be paid according to the remuneration standard for the new position when his origninal position was changed.Last but not least, Mr.Shi did not go to the new post and had done nothing after he was demoted. Therefor, Employer is not obligated to pay him salary responding to the assistant general manager Employee's lawyer's argumentFirst, Employer has no right to unilaterlly change his post and force him to leave his original post and accept position of lower level and paid much less.Second, Mr.Shi is competent for his position and his score of performance appraisalment is high. Third, Mr.Shi is not aware of enrollment period for position competition during which he was in his sick leave.Finally, Mr. Shi did put away his work documents and received no other task. He failure to work normally was caused by Employer at fault. So, Employer shall pay Mr. Shi full amount of salary according to his original position and provisions provided in supplementary agreement. Award by Changning Labor and Personnel Dispute CommissionThe Arbitrator held that Employer had right to adjust its employees' position through introducing position competition program according to needs of employer's business and rendered an award denying Mr.Shi's all claims.Mr. Shi is not satisfied with the Award rendered by Changning Labor and Personnel Dispute Commission and filed lawsuit with Court of law in Changning.Judgment by Changning Court of lawThe judge Mrs. Zhou held that Employer are not allowed to change Mr. Shi's position and lower his salary unilatterlly without legal cause. It is unlawful that Employer adjusted Mr.Shi's position and lower his salary without his consent but through introducing positions competition program. Employer shall pay deducted salary and year-end bonus for it is Employer's fault that Mr. Shi could not work normally.  
  • 11

    2019/04

    If you are interested in learning the case, please do not hesitate to contact us.Case MaterialSUMMARYPRACTICE AND PROCEDURE - Imposition of depositRACE DISCRIMINATIONAGE DISCRIMINATIONVICTIMISATION DISCRIMINATIONHARASSMENTIn 2013 the Claimant brought claims against the Respondent employer including race and age discrimination, harassment and victimisation. In March 2014, the ET made an Unless Order for particulars of the claims, warning that this was the last chance to present a coherent case. Following receipt of those particulars, the Respondent applied under Rules 37 and 39 for the claims to be struck out as having no reasonable prospects of success, alternatively for Deposit Orders. There was a history of delays and adjournments. The day before the hearing of the application the Claimant and her representative applied for an adjournment on the grounds of her ill-health. This was refused. The application proceeded in her absence and without representation on her behalf. In February 2015 the ET struck out all the claims, save the claim of direct race discrimination in respect of her dismissal for which it made a Deposit Order of £250 within 21 days. As to Rule 39(2) and the ability to pay, the ET had evidence that the Claimant had been on state benefit for part of the previous year but no information as to her current financial position. The Claimant failed to pay and the claim was struck out.The Claimant appealed against the refusal of the adjournment application/decision to proceed with the hearing in her absence, the Rule 37 strike out and the Deposit Order. As to the latter, she submitted there was no evidence to show ability to pay: cf. Rule 39(2). In any event the copy Order served on her did not contain the second page with its notice of the potential consequence that in default the claim would be struck out: cf. Rule 39(3). At the Rule 3(10) Hearing, the EAT dismissed the ground of appeal in respect of the decision to proceed with the hearing but allowed the other grounds to proceed to a Full Hearing. The Judge ordered service of affidavits as to the disputed factual issue concerning the notice.The EAT dismissed the appeal against the Rule 37 Strike Out Orders; but allowed the appeal in respect of the Deposit Order and subsequent strike out, holding that on the financial information available the only appropriate Order was a deposit of a nominal sum. It was therefore unnecessary to determine the ground of appeal under Rule 39(3), which would have required remission of the question of fact to the ET.THE HONOURABLE MR JUSTICE SOOLE1. These are the combined appeals of the Claimant against three Decisions of the Employment Tribunal ("ET") at Reading - Employment Judge Gumbiti-Zimuto - whose effect was to strike out her claims of age discrimination, race discrimination, harassment and victimisation.2. By Order sent to the parties on 27 February 2015, pursuant to Rule 37, the Employment Judge struck out all but one of those claims on the grounds that they had no reasonable prospects of success. In respect of one claim - namely direct race discrimination relating to her dismissal - pursuant to Rule 39, the Tribunal held that the claim had little reasonable prospect of success and made a Deposit Order requiring the Claimant to pay a deposit of £250 within 21 days of the Order being sent, as a condition of continuing to advance that contention. The Claimant failed to pay any part of that sum. By further Order dated 25 March 2015, the Tribunal struck out that claim pursuant to Rule 39(4). 3. Following the Rule 3(10) Hearing on 27 January 2016, His Honour Judge Hand QC ordered a Full Hearing on the grounds of appeal relating to:(1) the striking out of the claims apart from indirect race discrimination;(2) the Deposit Order;(3) the striking out of the claim which was the subject of the Deposit Order.4. In respect of the latter appeal, he ordered the parties each to lodge an affidavit relating it to a disputed issue as to whether or not the Claimant had been served with a full copy of the Deposit Order, and in particular, the second page which included notice of the consequence of a failure to pay the deposit by the due date.5. This is a claim with a very long history. The Claimant issued her ET1 on 24 July 2013, and amended it on 9 September 2013. This present appeal hearing was due to take place on 28 June 2017, but it had to be adjourned on the day because of the Claimant's ill health. The following is a much-abridged chronology, considered sufficient for the purpose of the appeal. A fuller narrative is contained in the Judgment of 27 February 2015.6. The Claimant was employed by the Respondent Council as a Youth and Community Worker for some 30 years; first in a part-time role from 1983 until 1998, and then full-time from 1998 until her dismissal on grounds of capability, by notice dated 3 May 2013 expiring 25 July 2013. Following the amendment of the ET1, the claim was understood to have comprised unfair dismissal, disability discrimination, age discrimination, race discrimination, harassment, whistleblowing, and victimisation. On 19 December 2013 the Claimant served particulars of claims. On 26 February 2014, a case management hearing took place before Employment Judge Salter. The Respondent was represented by counsel and the Claimant by representative Mr Ogbonmwan. By his Order, sent to the parties on 3 March 2014, the Employment Judge struck out the whistleblowing claim as having no reasonable prospects of success. As to the other claims, he stated this:"1. …Despite attempts by the Claimant to particularise her various complaints (with the exception of the unfair dismissal complaint) it was not possible from the extensive documentation (a) to identify clearly each complaint for disability discrimination, race discrimination, age discrimination and victimisation and (b) prepare a list of issues. Rather than strike out the claims at this stage on the basis that it was not possible to have a fair trial where the Claimant has failed to articulate her complaints, the Claimant was to be given a final chance to do so and the orders set out below were made. …"7. The Judge made Orders for the Claimant to provide by 4pm on 19 March 2014 further particulars, including:"3. …b. A schedule in tabular form in chronological order (under the headings shown in Appendix 1) setting out particulars of her claims of direct race discrimination, direct disability discrimination, direct age discrimination and harassment.c. Further particulars of any claim which the Claimant makes for victimisation, stating the protected act and the detriments alleged to have followed from it."He also ordered particulars in respect of the claim of failure to make reasonable adjustments.8. By paragraph 5 of the Order, he ordered that unless the Claimant complied with paragraph 3 of the Order - namely that which I have just cited - the relevant parts of the claim may be struck out under Rule 37. Giving his reasons, he stated: "5. The Claimant's case in relation to discrimination was not at all clear from the documents and it was not possible for the Respondent to prepare its defence unless it was. The Tribunal warned the Claimant that if it was not possible to have a fair hearing of the complaints because they were unfathomable there was a risk that they would be struck out. The Respondent was asked to prepare a draft order. The Tribunal made certain amendments to it as it was the Claimant's final opportunity to set out her case to enable a list of factual and legal issues to be prepared and agreed.6. The Tribunal warned the Claimant that her complaint of age discrimination as it currently appears on the documents was unclear. In relation to her complaint of race discrimination it was impossible to say whether it had a prospect of success at this stage but the Claimant was made aware that it would be unusual for a dismissal to be on the grounds of three protected characteristics."9. On the day before the due date for supply of particulars - namely 18 March - the Claimant applied for an extension of time which was refused. On 19 March at 15.57 she served a purported response to that Order, which the Respondent considered to be unsatisfactory.10. On 25 March 2014, the Respondent sent an email to the Tribunal and the Claimant which amongst other things contended that the particulars served pursuant to paragraph 3(b) of the Order of 3 March 2014 did not comply with its requirement. In particular, the email stated:"(b) The table contains no particulars at all of the Claimant's age discrimination claim. The Claimant was clearly warned at the PH that the age discrimination claim was unclear …(c) The particulars of the race discrimination claim in the final table are wholly unsatisfactory. They do no specify individual incidents of alleged discrimination in the manner required, rather the table constitutes a narrative of the events complained of. This takes the matter no further than the existing pleadings, and the Respondent is unable meaningfully to respond to the claim as it is now presented."The email continued by submitting that, in view of the breaches of that Unless Order, the claim should be struck out pursuant to paragraph 6 of the Order.11. On 2 May 2014, the Respondent sent an email which renewed the application for a strike out of the disability discrimination claims, and also stated for the avoidance of doubt that it continued to rely on the full contents of its email of 25 March. 12. On 5 June 2014, Employment Judge Salter made an Order striking out the claims of disability discrimination for non-compliance with his previous Order.13. On 18 June 2014 the Tribunal sent the parties a "Notice of Preliminary Hearing", which included the statement that: "… there will be a preliminary hearing to consider the Respondent's letter of 2 May 2014 and determine whether to strike out the claim because it has no reasonable prospect of success, whether to order the claimant to pay a deposit (not exceeding £1000) as a condition of continuing to advance any specific allegation or argument in the claim if the Tribunal considers that allegation or argument has little reasonable prospect of success."14. On 4 August 2014, the Tribunal sent a letter to the parties stating that a hearing listed to take place on 3 September would consider these applications. The hearing was subsequently adjourned until 6 November 2014. 15. On 5 November, the Claimant applied for a stay of the claim on the ground of her ill-health. The application was granted and the claim was stayed until 28 February 2015. By Notice to the parties dated 27 January 2015, the Tribunal notified them that the case was to be relisted to hear the matters referred to in the Notice of 18 June 2014. It was then listed for a hearing on 24 February 2015, i.e. four days before the end of the stay period. The Claimant and her then representative were duly notified of the hearing. In the meantime, the claim was listed for a Full Hearing commencing 6 July 2015. 16. By email to the Claimant dated 17 February 2015 the Respondent reiterated that it was pursuing its strike out application. On 20 February 2015 the Claimant's GP provided a letter to the Tribunal which stated that the Claimant was unwell and unable to attend the hearing on 24 February. On 23 February Mr Ogbonmwan applied for an adjournment of the next day's hearing, which was refused. There was no attendance on that date by the Claimant or her representative. The hearing proceeded. In his subsequent Rule 3(10) Decision, HHJ Hand QC refused the application to pursue a ground of appeal in respect of the Judge's exercise of discretion to proceed with the hearing of 24 February.17. I turn to the Judgment of 27 February 2015. As to the age discrimination claim, the Judge referred to its limited terms in the amended ET1, namely: "19. The claimant's age discrimination claim first surfaces in the amended claim form (the second ET1 form):"3. My most recent manager has seen it as her job to change how the service was provided but has been prejudiced in favour of younger people to fit with the new ways subjecting me to unfair discrimination by not recognising my age and not supporting me to change. She set out to dismiss me as an easy solution." "18. The Judge referred to the subsequent Order of Employment Judge Salter for further particulars. Then, turning to the particulars provided by the Claimant on 19 March 2014, he stated: "21. … The claimant purported to comply with that order on 19 March 2014 at 15.57 by sending an email providing further particulars. That document makes no reference to age discrimination. The claimant's complaint of age discrimination, which was unparticularised, appears to have been abandoned by the claimant. Whether or not the age discrimination claim has been abandoned, it appears to me that such a complaint has no reasonable prospect of success and should therefore be struck out." 19. As to the victimisation claim: "22. In the further particulars of 19 March in a section headed 'Victimisation', the particulars state:"2.1. [Ms Bovell] has on many occasions complained of mistreatment by Tina Heaford, her line manager, to her, management, human resources and occupational health. The nature and behaviour of this reported treatment constitutes bullying and harassment. It is acknowledged that [Ms Bovell] used the term 'discrimination' on only one occasion. However, AB's management would reasonably have seen the alleged behaviour as either at risk of being considered to be discriminatory nature [sic] or to have led to a definitive allegation of disability discrimination at a later stage."23. The claimant refers in the victimisation schedule to an occasion on 12 November 2012. Under the heading "Details of protected act", she states:"In a set of typed notes headed "Capability meeting Monday 12 November 2012" in note 9, [Ms Bovell] says: "There is a huge element of bullying in this area as well as discrimination." This complaint of discrimination in the light of Ms Bovell's disability is a protected act."24. The information provided by the claimant does not provide me with a clearly presented claim of victimisation that can be understood easily. It is not clear what type of discrimination is being alluded to when it is mentioned as set out above, and it is not clear that this is a protected act within the meaning of section 27(2) Equality Act 2010. Even if it was a protected act, there is no explanation as to what the detriment was which occurred as a result. The claimant's schedule contains various incidents dated between 12 November 2012 (the latest) and 31 August 2011 (the earliest) which are referred to as "protected acts" but no mention is made of any specific detriment. On the assumption that the detriment relied upon is the claimant's dismissal, I note that the claimant was dismissed on 25 April 2013 and the last protected act appears to have been on 12 November 2012. There is no explanation provided as to how the supposed protected act (or acts) can be shown to have been linked to the dismissal."He concluded that the claim had no reasonable prospect of success. 20. As to harassment, he stated: "27. The claimant's schedule sets out a series of events on diverse dates between 8 March 2013 and 18 April 2011. Some of the matters set out are undated. The claimant's complaint does not set out a clearly understood case of unwanted conduct related to a relevant protected characteristic. The claimant's document just sets out a list of events. On the material before me, I am satisfied that the claimant's complaint of harassment has no reasonable prospect of success."21. As to race discrimination - direct and indirect - the Employment Judge stated: "28. The claimant's schedule lists a variety of incidents between 22 March 2011 and April 2013. It is not clear from the schedule or from the schedule and the various documents produced by the claimant's representative in support of her case of race discrimination exactly what case the respondent has to meet in respect of direct race discrimination and indirect discrimination. The indirect discrimination is simply unclear. The matters referred to appear to be mainly out of time in any event. It may be the case that the claimant will rely on these matters as background to her claim about the dismissal. However, I am of the view that on the basis of the incoherent information before me, the claimant's complaints about direct and indirect discrimination on the grounds of race have no reasonable prospect of success. I do not include in this the claimant's complaint about the dismissal. While the claimant's complaint that the dismissal is on the grounds of her race has not been articulated clearly so that the strength or weakness of the arguments in support of the case can be assessed, I can understand the complaint. That distinguishes it from much of claimant's other complaints about discrimination. It would not be appropriate to strike out that claim. However, the claimant's failure to articulate a case which is understood leads me to conclude that it has little reasonable prospect of success.29. My decision is to strike out the claimant's complaints of race discrimination (direct and indirect) other than in respect of the claimant's complaint of direct race discrimination in respect of the dismissal. Having considered the information that I have available which appears to show that the claimant was - during part of 2014 - in receipt of state benefits but I have no information as to the claimant's current financial position, I came to the conclusion that there should be a deposit order made in the sum of £250."22. The Deposit Order consequent upon that Judgment included the following in respect of the sum of £250: "The Employment Judge considers that the claimant's contention that her dismissal was an act of direct race discrimination has little reasonable prospect of success. The claimant is ordered to pay a deposit of £250.00 no later than 21 days from the date this order is sent as a condition of being permitted to continue to advance that contention. The Judge has had regard to any information available as to the claimant's ability to comply with the order in determining the amount of the deposit."23. The second page of the Order which is on the reverse of the first page contained the usual note headed "Note Accompanying Deposit Order". Its first four paragraphs provide: "1. The Tribunal has made an order (a "deposit order") requiring a party to pay a deposit as a condition of being permitted to continue to advance the allegations or arguments specified in the order.2. If that party persists in advancing that complaint or response, a Tribunal may make an award of costs or preparation time against that party. That party could then lose their deposit.When to pay the deposit?3. The party against whom the deposit order has been made must pay the deposit by the date specified in the order.4. If the deposit is not paid within that time, the complaint or response to which the order relates will be struck out."The third page provided a cut-off slip for payment of the deposit. The Claimant contends that she did not receive the second page.24. By application dated 13 March 2015 the Claimant applied for reconsideration of the Tribunal's Decision of 27 February 2015. This referred to the Decision to strike out the claims as having no reasonable prospect of success but made no reference to the Deposit Order. The application was refused.25. By Order dated 25 March 2015, and following the failure to pay the requisite deposit of £250, Employment Judge Gumbiti-Zimuto struck out the complaint of race discrimination relating to dismissal.26. By her affidavit dated 5 May 2016, the Claimant states that she received the Deposit Order in "around March 2015" by hard copy in the post, and, in effect, that it did not include the second page. 27. By her affidavit dated 1 June 2016, Ms Khimji - the Respondent's then in-house employment solicitor - states that she emailed the Tribunal's Order and Judgment following the hearing. She exhibits an email to Mr Ogbonmwan dated 4 March 2015, timed at 11.53am and sent to both his email addresses. The message states: "I attach a copy of the Tribunal's Judgment at the recent hearing, in case you have not received it". She almost immediately received a rejection message from one of the two addresses as "quota exceeded (mailbox for user is full)", but not from the other address. She then exhibits an email from the Claimant dated 13 March which includes a forwarding message from Mr Ogbonmwan to the Claimant on 4 March at 15.04, stating: "Dear [Ms Bovell], Please see decision".28. In her skeleton argument the Claimant says that the second page was missing from the hard copy Order received in the post. She accepts that she received the 4 March email from Mr Ogbonmwan, but says that: "30. … I recall that I could not open the document and simply relied on the one sent by the court, and I have not been negligent in doing so, as the court copy is the primary and original copy. …"29. The Claimant has two grounds of appeal in respect of the Deposit Order. First, that the Judge had no basis for his conclusion that a deposit of £250 should be paid. Secondly, that the Order was defective in the form received by her because of the absence of the second page with its note of advice that failure to pay would result in the claim being struck out. In allowing both grounds to go forward to a Full Hearing, HHJ Hand QC recognised that the latter could involve questions of credibility more suitable for consideration by the ET, but concluded that given the other grounds that course need not be taken, at least at that stage.30. I start with the first ground. The Claimant points first to Rule 39(2) which provides that:"(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit."She then points to paragraph 29 of the Decision, where the Judge has stated: "29. … Having considered the information that I have available which appears to show that the claimant was - during part of 2014 - in receipt of state benefits but I have no information as to the claimant's current financial position, I came to the conclusion that there should be a deposit order made in the sum of £250." 31. She submits that the Judge made no reasonable enquiries into her ability to pay, but in any event, the only information which she had was that she had received benefits during part of 2014. The Claimant then seeks to contrast the Deposit Order, where it is stated that: "… The Judge has had regard to any information available as to the claimant's ability to comply with the order in determining the amount of the deposit."All in all, she submits that there was no basis for the Judge to reach the implicit conclusion that she was in a position to pay £250 within 21 days.32. In response, counsel for the Respondent, Ms Reindorf submits that Rule 39(2) does not prevent a Tribunal from making a Deposit Order in circumstances where reasonable enquiries disclose no or limited information as to the means of the paying party. In any event, the Judge made such enquiries as were reasonable in the circumstances and had sufficient regard to her ability to pay the deposit. The Claimant was fully on notice of the possibility of a Deposit Order and could have supplied evidence as to her means. If it was reasonable to proceed with the hearing in her absence, it was equally reasonable to proceed to determine the listed matters on the basis of the information available on the papers. The Judge properly reviewed the documents on the file in order to ascertain as far as possible the extent of the Claimant's means. There was no inconsistency between the terms of his Judgment and the Order. Furthermore, in exercising her entitlement to seek a reconsideration of the Decisions made by the Judge, the Claimant did not challenge the amount of the Deposit Order or suggest that she was unable to pay such a sum.33. I do not accept that there is any inconsistency between paragraph 29 of the Judge's Decision and his observations in the Deposit Order. The former states that he has no information as to the Claimant's current financial position. The latter, in stating that the Judge "has had regard to any information available as to the claimant's ability to comply with the order in determining the amount of the deposit", simply reflects the reference in Rule 39(2) to "any information". In this case, there was no such information. I accept that having been given due notice of the alternative application for a Deposit Order, the Claimant had the opportunity to put forward evidence as to her means. She did not take that opportunity.34. Rule 39(2) requires the Tribunal to make reasonable enquiries into the paying party's ability to pay a proposed deposit. The underlying purpose is, of course, to ensure that the Tribunal does not, by requiring a deposit which the Claimant cannot pay within the stated period, make an Order which amounts to a strike out of the claim. The Tribunal's reasonable enquiries and subsequent decision involve the exercise of a discretion, with which this Appeal Tribunal will only interfere on the well-established and limited grounds.35. I have great sympathy for the position in which the Tribunal found itself. However, I have concluded that the decision fell outside the generous ambit of the Judge's discretion. Faced with no appearance or representation by the Claimant, the Judge did the best he could to ascertain the Claimant's ability to pay from the case papers. The result was that the only information he had about the Claimant was that she had been in receipt of state benefits for part of the previous year, but he had no information as to her current position. True it is that the Claimant knew of the application and could have provided information as to her ability or inability to pay any deposit, however, there is nothing in the notification of the application which advised that she should do so. 36. One option would have been for the Judge to adjourn the matter for a short period to allow her to put in such evidence. Given all the delays that had occurred it is entirely understandable that the Judge did not take that possible course. Thus, I do not accept the submission that he failed in his obligation to make reasonable enquiries. The steps he took fell within the generous ambit of the discretion. 37. However, on the basis of the information he did have, I do not consider that the Judge was in a position to conclude that the Claimant was able to pay the sum of £250 within 21 days. The only evidence was of state benefits, albeit in the preceding year. There is no suggestion in the Decision of an inference, for example, from some aspect of the circumstances, that the Claimant was in employment or had means which she was not disclosing or that she was otherwise in a position to pay that sum within that period.38. In my judgment, on the information available, the only deposit which the Judge could have ordered was a truly nominal sum. In reaching this conclusion, I recognise that the Claimant did not suggest in her application for reconsideration that she was unable to pay that sum. However, the question is whether the Judge was entitled to make the Order on the basis of the information before him. Furthermore, one of the Notices of Appeal states that if the application for reconsideration had been granted: "35. … she could have had the opportunity to show her means having lost her job over a year [sic] and have been accessed [sic] by the tribunal's fee remission to the extent that her tribunal application were [sic] made by way of fee remission and the deposit amount could have been reduced if she had attended the hearing."39. I conclude that the Deposit Order must be set aside. If so, as is common ground, it must follow that the subsequent Striking Out Order for failure to pay must also be set aside. On the basis of my conclusion that the only answer was to order a nominal deposit there is no need for the matter to be remitted to the Tribunal. I will hear the parties on the amount of the nominal sum. In reaching this conclusion I should emphasise that it is a decision purely on the facts of this particular case. It should not be cited as raising any general proposition as to the exercise of discretion in the making of Deposit Orders.40. In consequence of my decision, I need only deal briefly with the second ground of appeal relating to the Deposit Order. This arises from Rule 39(3) which provides that: "(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order."The standard notice served with the Deposit Order includes the statement that: "If the deposit is not paid within that time, the complaint or response to which the order relates will be struck out". The Claimant contends that she did not receive the second page of the Order which contains that notice; that Rule 39(3) was thus breached; and that in consequence the claim of direct race discrimination by dismissal should not have been struck out.41. The Respondent contends that there is no reason to believe that the Order sent to Claimant by the Tribunal did not contain the second page, and that, in any event, the affidavit evidence of Ms Khimji demonstrates that she received a full copy. The Respondent submits that the Claimant's account is dishonest. In any event, Ms Reindorf submits that the requirement under Rule 39(3) to notify the paying party about the potential consequences of the Order was satisfied with the words on the first page of the Order, which states that the payment is "a condition of being permitted to continue to advance that contention". She submits that the use of those words made clear, at least by necessary implication, the consequence that in default the claim would be struck out.42. I do not agree with that construction. In my judgment, Rule 39(3) requires the consequence of strike out to be expressly notified to the paying party, and the second page duly contains such a notice. Indeed, paragraphs 1 and 4 on that page distinguish between the condition and the consequence of a breach. However, the question of whether the Claimant received such requisite notice is a question of fact which would be for the ET, not this Tribunal, to determine. In the light of my conclusion on the first ground, it is not necessary for that question of fact to be decided.43. The final ground of appeal concerns the decision to strike out the remaining claims on the grounds that they had no reasonable prospects of success. Rule 37 provides as material:"(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds -(a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing."44. The application to strike out as contained in the Respondent's email of 25 March 2014 was on the basis that the Claimant had failed to comply with the Unless Order of Employment Judge Salter dated 3 March 2014. However, by the notice of 18 June 2014 it had extended to an application on the grounds that the claim had no reasonable prospect of success.45. The settled law is that, at least when the central facts are in dispute, it is only in an exceptional case that a discrimination claim will be struck out as having no reasonable prospects of success: see the authorities most recently discussed by the Court of Appeal in Ahir v British Airways Plc [2017] EWCA Civ 1392. However, as Underhill LJ observed in that decision, it is no error of law for the Tribunal not to refer to the leading authorities by name, nor is it necessary to repeat particular phrases from those authorities. As he stated: "The only essential phrase is that in Rule 37(1)(a) of the Employment Tribunal Rules" (paragraph 14). He added: "16. … Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be 'little reasonable prospect of success'."46. Furthermore, in deciding whether the claim has reasonable prospects of success, the Tribunal is fully entitled to take account of the Claimant's response to Orders for the claim to be particularised. If the claim cannot be properly understood or its key elements sufficiently identified, that may well be relevant to whether it has reasonable prospects of success.47. Of particular importance in the background of this application was the Unless Order of Employment Judge Salter dated 3 March 2014. As his Reasons make clear, the Claimant was given a final opportunity to set out her case in a way which could go forward to trial. The Claimant's particulars served on 19 March 2014 were headed:"Response to Tribunal Order of 26th February 2014Contents:Disability Discrimination ParticularsDisability Discrimination ScheduleVictimisation ParticularsVictimisation ScheduleHarassment ParticularsHarassment Schedule Race Discrimination"These run to 19 pages and must be read together with this Judgment.48. As to age discrimination, the Claimant acknowledges that the only reference to such a claim was in the cited paragraph of her amended ET1, and that the particulars of 19 March make no reference to that claim.49. In her written submissions, the Claimant seeks to supplement that case by reference to two paragraphs in a witness statement of the Respondent's witness Sarah Gee. These state: "38. I suspect that the role changed over the years and Ms Bovell didn't have the ability to adapt to changing expectations even with considerable support. The youth work role has changed over many years and is still changing - becoming increasingly targeted at work with the most vulnerable - thus increasing the level of risk involved in the work.…40. I did also consider the workloads and standards of performance of others in the team as above and found that generally less experienced workers were performing satisfactorily and to a higher standard than Ms Bovell. …"50. This material is of no assistance. The obligation of the Claimant, as emphasised in the Order of Employment Judge Salter, is to set out her case in a way that is coherent and can lead to an identifiable list of issues for trial. This material from the Respondent's witness statement adds nothing to the picture and leaves the case as unclear as before. It follows that the challenge to the Tribunal's conclusion that this claim has no reasonable prospects of success must fail.51. As to the victimisation claim, this is particularised in "Victimisation Particulars" and a "Victimisation Schedule". The latter has three columns headed "Date", "Details of protected act", and "Detriments following". The only date entry with a possibly discernible protected act arises from typed notes of a meeting on 12 November 2012, recording the Claimant stated that: "There is a huge element of bullying in this area as well as discrimination". The type of discrimination is not identified. The column of "Detriments following" is, in each case, blank.52. The Claimant submitted in her written argument that: "63. … the judge completely missed the point and committed an error of law, when he said that I did not mention detriment. What detriment could be harsher than dismissal after over 30 years of service? There also was the refusal to hear my grievance and to redeploy me to mention. The judge also missed the point on the causal link between my protected acts and eventual dismissal."53. Giving all weight to the case law on strike out of such claims, I see no basis to challenge the Judge's conclusion, for the reasons cited in paragraph 23 of his Judgment, that it has no reasonable prospects of success. As Ms Reindorf correctly submits in respect of all the claims, it is not reasonably possible to discern what the claim consists of, nor therefore to identify a coherent list of issues for trial.54. As to harassment, the Claimant's response to the Order of 3 March 2014 has a page of "Harassment Particulars" relating to the alleged bullying by her line manager, Tina Heaford, between 2011 and 2013. The contact is alleged to be a response to her disability and to constitute disability discrimination. There follows a list of seven types of bullying, and its alleged effects. There follows a "Harassment Schedule" setting out a list of events with a column headed "Person(s) responsible" which, when completed, states "TH", i.e. Ms Heaford. 55. The Claimant submits that the Judge dismissed her claim with a wave of the hands without considering the various matters she had brought before the Court (see written submissions, paragraph 64). In oral argument, she said that the conduct was on the grounds both of disability and of race. She acknowledged that there was no reference to the latter in her particulars. I again see no basis to challenge the Judge's conclusion that the complaint does not set out a clearly understandable case of unwanted conduct related to a relevant protected characteristic. All in all, there is no coherent claim to go forward to trial.56. As to race discrimination, the particulars set out a four-page schedule with columns for date, detail, perpetrators, form of discrimination, comparators and date of grievance. Following the Order of HHJ Hand QC, the claims of indirect discrimination do not proceed. In the light of my conclusion on the first ground, the claim of direct discrimination in respect of dismissal does proceed. As to the others, the Claimant submits that the Judge was wrong to give any weight to the question of whether the claims were out of time. Those were matters for distinct determination, including any possible extension of time, and in any event the Judge was going no further than stating that "the matters referred to appear to be mainly out of time in any event".57. As to the Judge's conclusion that the schedule listed a variety of incidents between 22 March 2011 and April 2013 and failed to articulate any coherent case of race discrimination in respect of the non-dismissal matters, the Claimant's written submission includes as follows:"66. In totality, I supplied information (see [pages] 62-131 of bundle) that were sufficient for the judge to determine the general trend of my case, but the Judge simply ignored them in agreement with the respondent that they did not make sense. As the various emails and witness statements contained in the bundle shows, I would have been able to substantiate my claim during hearing. The gravamen of my case is however that had the judge been patient enough to allow me to attend a hearing or at least grant one in reconsideration, I would have been able to lay out my case clearly to him. …"58. The Claimant again reminds me of the law on the limited circumstances in which such claims should be struck out.59. In my judgment, the passage which I have just cited in paragraph 66 of the Claimant's written submissions epitomises the problem with her case on all the claims that were struck out. Even if a "general trend" could be discerned, that is not sufficient for the presentation of the case to go forward to trial. Nor is it a matter that can be left until the hearing. At least in circumstances where the Judge was not reaching a definitive conclusion as to whether the claims were out of time and/or whether time should be extended, I agree that this was not a factor to be taken into account in the decision. However, I am not persuaded that this was a material factor in the Judge's decision to strike out the claims. His reference to the time issue was no more than an observation made "in any event". The core ground of all his strike out decisions was that the Claimant had in each case failed to articulate a coherent case which could be taken forward to trial, and that accordingly it had no reasonable prospects of success. In my judgment, that conclusion was clearly right.60. In the results, I allow the appeal in respect of the Deposit Order dated 27 February 2015 and the subsequent Strike Out Order dated 25 March 2015. I dismiss the appeal in respect of the Strike Out Orders dated 27 February 2015.
  • 07

    2020/07

    第一章 总  则第一条 为了规范农民工工资支付行为,保障农民工按时足额获得工资,根据《中华人民共和国劳动法》及有关法律规定,制定本条例。第二条 保障农民工工资支付,适用本条例。本条例所称农民工,是指为用人单位提供劳动的农村居民。本条例所称工资,是指农民工为用人单位提供劳动后应当获得的劳动报酬。第三条 农民工有按时足额获得工资的权利。任何单位和个人不得拖欠农民工工资。农民工应当遵守劳动纪律和职业道德,执行劳动安全卫生规程,完成劳动任务。第四条 县级以上地方人民政府对本行政区域内保障农民工工资支付工作负责,建立保障农民工工资支付工作协调机制,加强监管能力建设,健全保障农民工工资支付工作目标责任制,并纳入对本级人民政府有关部门和下级人民政府进行考核和监督的内容。乡镇人民政府、街道办事处应当加强对拖欠农民工工资矛盾的排查和调处工作,防范和化解矛盾,及时调解纠纷。第五条 保障农民工工资支付,应当坚持市场主体负责、政府依法监管、社会协同监督,按照源头治理、预防为主、防治结合、标本兼治的要求,依法根治拖欠农民工工资问题。第六条 用人单位实行农民工劳动用工实名制管理,与招用的农民工书面约定或者通过依法制定的规章制度规定工资支付标准、支付时间、支付方式等内容。第七条 人力资源社会保障行政部门负责保障农民工工资支付工作的组织协调、管理指导和农民工工资支付情况的监督检查,查处有关拖欠农民工工资案件。住房城乡建设、交通运输、水利等相关行业工程建设主管部门按照职责履行行业监管责任,督办因违法发包、转包、违法分包、挂靠、拖欠工程款等导致的拖欠农民工工资案件。发展改革等部门按照职责负责政府投资项目的审批管理,依法审查政府投资项目的资金来源和筹措方式,按规定及时安排政府投资,加强社会信用体系建设,组织对拖欠农民工工资失信联合惩戒对象依法依规予以限制和惩戒。财政部门负责政府投资资金的预算管理,根据经批准的预算按规定及时足额拨付政府投资资金。公安机关负责及时受理、侦办涉嫌拒不支付劳动报酬刑事案件,依法处置因农民工工资拖欠引发的社会治安案件。司法行政、自然资源、人民银行、审计、国有资产管理、税务、市场监管、金融监管等部门,按照职责做好与保障农民工工资支付相关的工作。第八条 工会、共产主义青年团、妇女联合会、残疾人联合会等组织按照职责依法维护农民工获得工资的权利。第九条 新闻媒体应当开展保障农民工工资支付法律法规政策的公益宣传和先进典型的报道,依法加强对拖欠农民工工资违法行为的舆论监督,引导用人单位增强依法用工、按时足额支付工资的法律意识,引导农民工依法维权。第十条 被拖欠工资的农民工有权依法投诉,或者申请劳动争议调解仲裁和提起诉讼。任何单位和个人对拖欠农民工工资的行为,有权向人力资源社会保障行政部门或者其他有关部门举报。人力资源社会保障行政部门和其他有关部门应当公开举报投诉电话、网站等渠道,依法接受对拖欠农民工工资行为的举报、投诉。对于举报、投诉的处理实行首问负责制,属于本部门受理的,应当依法及时处理;不属于本部门受理的,应当及时转送相关部门,相关部门应当依法及时处理,并将处理结果告知举报、投诉人。第二章 工资支付形式与周期第十一条 农民工工资应当以货币形式,通过银行转账或者现金支付给农民工本人,不得以实物或者有价证券等其他形式替代。第十二条 用人单位应当按照与农民工书面约定或者依法制定的规章制度规定的工资支付周期和具体支付日期足额支付工资。第十三条 实行月、周、日、小时工资制的,按照月、周、日、小时为周期支付工资;实行计件工资制的,工资支付周期由双方依法约定。第十四条 用人单位与农民工书面约定或者依法制定的规章制度规定的具体支付日期,可以在农民工提供劳动的当期或者次期。具体支付日期遇法定节假日或者休息日的,应当在法定节假日或者休息日前支付。用人单位因不可抗力未能在支付日期支付工资的,应当在不可抗力消除后及时支付。第十五条 用人单位应当按照工资支付周期编制书面工资支付台账,并至少保存3年。书面工资支付台账应当包括用人单位名称,支付周期,支付日期,支付对象姓名、身份证号码、联系方式,工作时间,应发工资项目及数额,代扣、代缴、扣除项目和数额,实发工资数额,银行代发工资凭证或者农民工签字等内容。用人单位向农民工支付工资时,应当提供农民工本人的工资清单。第三章 工资清偿第十六条 用人单位拖欠农民工工资的,应当依法予以清偿。第十七条 不具备合法经营资格的单位招用农民工,农民工已经付出劳动而未获得工资的,依照有关法律规定执行。第十八条 用工单位使用个人、不具备合法经营资格的单位或者未依法取得劳务派遣许可证的单位派遣的农民工,拖欠农民工工资的,由用工单位清偿,并可以依法进行追偿。第十九条 用人单位将工作任务发包给个人或者不具备合法经营资格的单位,导致拖欠所招用农民工工资的,依照有关法律规定执行。用人单位允许个人、不具备合法经营资格或者未取得相应资质的单位以用人单位的名义对外经营,导致拖欠所招用农民工工资的,由用人单位清偿,并可以依法进行追偿。第二十条 合伙企业、个人独资企业、个体经济组织等用人单位拖欠农民工工资的,应当依法予以清偿;不清偿的,由出资人依法清偿。第二十一条 用人单位合并或者分立时,应当在实施合并或者分立前依法清偿拖欠的农民工工资;经与农民工书面协商一致的,可以由合并或者分立后承继其权利和义务的用人单位清偿。第二十二条 用人单位被依法吊销营业执照或者登记证书、被责令关闭、被撤销或者依法解散的,应当在申请注销登记前依法清偿拖欠的农民工工资。未依据前款规定清偿农民工工资的用人单位主要出资人,应当在注册新用人单位前清偿拖欠的农民工工资。第四章 工程建设领域特别规定第二十三条 建设单位应当有满足施工所需要的资金安排。没有满足施工所需要的资金安排的,工程建设项目不得开工建设;依法需要办理施工许可证的,相关行业工程建设主管部门不予颁发施工许可证。政府投资项目所需资金,应当按照国家有关规定落实到位,不得由施工单位垫资建设。第二十四条 建设单位应当向施工单位提供工程款支付担保。建设单位与施工总承包单位依法订立书面工程施工合同,应当约定工程款计量周期、工程款进度结算办法以及人工费用拨付周期,并按照保障农民工工资按时足额支付的要求约定人工费用。人工费用拨付周期不得超过1个月。建设单位与施工总承包单位应当将工程施工合同保存备查。第二十五条 施工总承包单位与分包单位依法订立书面分包合同,应当约定工程款计量周期、工程款进度结算办法。第二十六条 施工总承包单位应当按照有关规定开设农民工工资专用账户,专项用于支付该工程建设项目农民工工资。开设、使用农民工工资专用账户有关资料应当由施工总承包单位妥善保存备查。第二十七条 金融机构应当优化农民工工资专用账户开设服务流程,做好农民工工资专用账户的日常管理工作;发现资金未按约定拨付等情况的,及时通知施工总承包单位,由施工总承包单位报告人力资源社会保障行政部门和相关行业工程建设主管部门,并纳入欠薪预警系统。工程完工且未拖欠农民工工资的,施工总承包单位公示30日后,可以申请注销农民工工资专用账户,账户内余额归施工总承包单位所有。第二十八条 施工总承包单位或者分包单位应当依法与所招用的农民工订立劳动合同并进行用工实名登记,具备条件的行业应当通过相应的管理服务信息平台进行用工实名登记、管理。未与施工总承包单位或者分包单位订立劳动合同并进行用工实名登记的人员,不得进入项目现场施工。施工总承包单位应当在工程项目部配备劳资专管员,对分包单位劳动用工实施监督管理,掌握施工现场用工、考勤、工资支付等情况,审核分包单位编制的农民工工资支付表,分包单位应当予以配合。施工总承包单位、分包单位应当建立用工管理台账,并保存至工程完工且工资全部结清后至少3年。第二十九条 建设单位应当按照合同约定及时拨付工程款,并将人工费用及时足额拨付至农民工工资专用账户,加强对施工总承包单位按时足额支付农民工工资的监督。因建设单位未按照合同约定及时拨付工程款导致农民工工资拖欠的,建设单位应当以未结清的工程款为限先行垫付被拖欠的农民工工资。建设单位应当以项目为单位建立保障农民工工资支付协调机制和工资拖欠预防机制,督促施工总承包单位加强劳动用工管理,妥善处理与农民工工资支付相关的矛盾纠纷。发生农民工集体讨薪事件的,建设单位应当会同施工总承包单位及时处理,并向项目所在地人力资源社会保障行政部门和相关行业工程建设主管部门报告有关情况。第三十条 分包单位对所招用农民工的实名制管理和工资支付负直接责任。施工总承包单位对分包单位劳动用工和工资发放等情况进行监督。分包单位拖欠农民工工资的,由施工总承包单位先行清偿,再依法进行追偿。工程建设项目转包,拖欠农民工工资的,由施工总承包单位先行清偿,再依法进行追偿。第三十一条 工程建设领域推行分包单位农民工工资委托施工总承包单位代发制度。分包单位应当按月考核农民工工作量并编制工资支付表,经农民工本人签字确认后,与当月工程进度等情况一并交施工总承包单位。施工总承包单位根据分包单位编制的工资支付表,通过农民工工资专用账户直接将工资支付到农民工本人的银行账户,并向分包单位提供代发工资凭证。用于支付农民工工资的银行账户所绑定的农民工本人社会保障卡或者银行卡,用人单位或者其他人员不得以任何理由扣押或者变相扣押。第三十二条 施工总承包单位应当按照有关规定存储工资保证金,专项用于支付为所承包工程提供劳动的农民工被拖欠的工资。工资保证金实行差异化存储办法,对一定时期内未发生工资拖欠的单位实行减免措施,对发生工资拖欠的单位适当提高存储比例。工资保证金可以用金融机构保函替代。工资保证金的存储比例、存储形式、减免措施等具体办法,由国务院人力资源社会保障行政部门会同有关部门制定。第三十三条 除法律另有规定外,农民工工资专用账户资金和工资保证金不得因支付为本项目提供劳动的农民工工资之外的原因被查封、冻结或者划拨。第三十四条 施工总承包单位应当在施工现场醒目位置设立维权信息告示牌,明示下列事项:(一)建设单位、施工总承包单位及所在项目部、分包单位、相关行业工程建设主管部门、劳资专管员等基本信息;(二)当地**工资标准、工资支付日期等基本信息;(三)相关行业工程建设主管部门和劳动保障监察投诉举报电话、劳动争议调解仲裁申请渠道、法律援助申请渠道、公共法律服务热线等信息。第三十五条 建设单位与施工总承包单位或者承包单位与分包单位因工程数量、质量、造价等产生争议的,建设单位不得因争议不按照本条例第二十四条的规定拨付工程款中的人工费用,施工总承包单位也不得因争议不按照规定代发工资。第三十六条 建设单位或者施工总承包单位将建设工程发包或者分包给个人或者不具备合法经营资格的单位,导致拖欠农民工工资的,由建设单位或者施工总承包单位清偿。施工单位允许其他单位和个人以施工单位的名义对外承揽建设工程,导致拖欠农民工工资的,由施工单位清偿。第三十七条 工程建设项目违反国土空间规划、工程建设等法律法规,导致拖欠农民工工资的,由建设单位清偿。第五章 监督检查第三十八条 县级以上地方人民政府应当建立农民工工资支付监控预警平台,实现人力资源社会保障、发展改革、司法行政、财政、住房城乡建设、交通运输、水利等部门的工程项目审批、资金落实、施工许可、劳动用工、工资支付等信息及时共享。人力资源社会保障行政部门根据水电燃气供应、物业管理、信贷、税收等反映企业生产经营相关指标的变化情况,及时监控和预警工资支付隐患并做好防范工作,市场监管、金融监管、税务等部门应当予以配合。第三十九条 人力资源社会保障行政部门、相关行业工程建设主管部门和其他有关部门应当按照职责,加强对用人单位与农民工签订劳动合同、工资支付以及工程建设项目实行农民工实名制管理、农民工工资专用账户管理、施工总承包单位代发工资、工资保证金存储、维权信息公示等情况的监督检查,预防和减少拖欠农民工工资行为的发生。第四十条 人力资源社会保障行政部门在查处拖欠农民工工资案件时,需要依法查询相关单位金融账户和相关当事人拥有房产、车辆等情况的,应当经设区的市级以上地方人民政府人力资源社会保障行政部门负责人批准,有关金融机构和登记部门应当予以配合。第四十一条 人力资源社会保障行政部门在查处拖欠农民工工资案件时,发生用人单位拒不配合调查、清偿责任主体及相关当事人无法联系等情形的,可以请求公安机关和其他有关部门协助处理。人力资源社会保障行政部门发现拖欠农民工工资的违法行为涉嫌构成拒不支付劳动报酬罪的,应当按照有关规定及时移送公安机关审查并作出决定。第四十二条 人力资源社会保障行政部门作出责令支付被拖欠的农民工工资的决定,相关单位不支付的,可以依法申请人民法院强制执行。第四十三条 相关行业工程建设主管部门应当依法规范本领域建设市场秩序,对违法发包、转包、违法分包、挂靠等行为进行查处,并对导致拖欠农民工工资的违法行为及时予以制止、纠正。第四十四条 财政部门、审计机关和相关行业工程建设主管部门按照职责,依法对政府投资项目建设单位按照工程施工合同约定向农民工工资专用账户拨付资金情况进行监督。第四十五条 司法行政部门和法律援助机构应当将农民工列为法律援助的重点对象,并依法为请求支付工资的农民工提供便捷的法律援助。公共法律服务相关机构应当积极参与相关诉讼、咨询、调解等活动,帮助解决拖欠农民工工资问题。第四十六条 人力资源社会保障行政部门、相关行业工程建设主管部门和其他有关部门应当按照“谁执法谁普法”普法责任制的要求,通过以案释法等多种形式,加大对保障农民工工资支付相关法律法规的普及宣传。第四十七条 人力资源社会保障行政部门应当建立用人单位及相关责任人劳动保障守法诚信档案,对用人单位开展守法诚信等级评价。用人单位有严重拖欠农民工工资违法行为的,由人力资源社会保障行政部门向社会公布,必要时可以通过召开新闻发布会等形式向媒体公开曝光。第四十八条 用人单位拖欠农民工工资,情节严重或者造成严重不良社会影响的,有关部门应当将该用人单位及其法定代表人或者主要负责人、直接负责的主管人员和其他直接责任人员列入拖欠农民工工资失信联合惩戒对象名单,在政府资金支持、政府采购、招投标、融资贷款、市场准入、税收优惠、评优评先、交通出行等方面依法依规予以限制。拖欠农民工工资需要列入失信联合惩戒名单的具体情形,由国务院人力资源社会保障行政部门规定。第四十九条 建设单位未依法提供工程款支付担保或者政府投资项目拖欠工程款,导致拖欠农民工工资的,县级以上地方人民政府应当限制其新建项目,并记入信用记录,纳入国家信用信息系统进行公示。第五十条 农民工与用人单位就拖欠工资存在争议,用人单位应当提供依法由其保存的劳动合同、职工名册、工资支付台账和清单等材料;不提供的,依法承担不利后果。第五十一条 工会依法维护农民工工资权益,对用人单位工资支付情况进行监督;发现拖欠农民工工资的,可以要求用人单位改正,拒不改正的,可以请求人力资源社会保障行政部门和其他有关部门依法处理。第五十二条 单位或者个人编造虚假事实或者采取非法手段讨要农民工工资,或者以拖欠农民工工资为名讨要工程款的,依法予以处理。第六章 法律责任第五十三条 违反本条例规定拖欠农民工工资的,依照有关法律规定执行。第五十四条 有下列情形之一的,由人力资源社会保障行政部门责令限期改正;逾期不改正的,对单位处2万元以上5万元以下的罚款,对法定代表人或者主要负责人、直接负责的主管人员和其他直接责任人员处1万元以上3万元以下的罚款:(一)以实物、有价证券等形式代替货币支付农民工工资;(二)未编制工资支付台账并依法保存,或者未向农民工提供工资清单;(三)扣押或者变相扣押用于支付农民工工资的银行账户所绑定的农民工本人社会保障卡或者银行卡。第五十五条 有下列情形之一的,由人力资源社会保障行政部门、相关行业工程建设主管部门按照职责责令限期改正;逾期不改正的,责令项目停工,并处5万元以上10万元以下的罚款;情节严重的,给予施工单位限制承接新工程、降低资质等级、吊销资质证书等处罚:(一)施工总承包单位未按规定开设或者使用农民工工资专用账户;(二)施工总承包单位未按规定存储工资保证金或者未提供金融机构保函;(三)施工总承包单位、分包单位未实行劳动用工实名制管理。第五十六条 有下列情形之一的,由人力资源社会保障行政部门、相关行业工程建设主管部门按照职责责令限期改正;逾期不改正的,处5万元以上10万元以下的罚款:(一)分包单位未按月考核农民工工作量、编制工资支付表并经农民工本人签字确认;(二)施工总承包单位未对分包单位劳动用工实施监督管理;(三)分包单位未配合施工总承包单位对其劳动用工进行监督管理;(四)施工总承包单位未实行施工现场维权信息公示制度。第五十七条 有下列情形之一的,由人力资源社会保障行政部门、相关行业工程建设主管部门按照职责责令限期改正;逾期不改正的,责令项目停工,并处5万元以上10万元以下的罚款:(一)建设单位未依法提供工程款支付担保;(二)建设单位未按约定及时足额向农民工工资专用账户拨付工程款中的人工费用;(三)建设单位或者施工总承包单位拒不提供或者无法提供工程施工合同、农民工工资专用账户有关资料。第五十八条 不依法配合人力资源社会保障行政部门查询相关单位金融账户的,由金融监管部门责令改正;拒不改正的,处2万元以上5万元以下的罚款。第五十九条 政府投资项目政府投资资金不到位拖欠农民工工资的,由人力资源社会保障行政部门报本级人民政府批准,责令限期足额拨付所拖欠的资金;逾期不拨付的,由上一级人民政府人力资源社会保障行政部门约谈直接责任部门和相关监管部门负责人,必要时进行通报,约谈地方人民政府负责人。情节严重的,对地方人民政府及其有关部门负责人、直接负责的主管人员和其他直接责任人员依法依规给予处分。第六十条 政府投资项目建设单位未经批准立项建设、擅自扩大建设规模、擅自增加投资概算、未及时拨付工程款等导致拖欠农民工工资的,除依法承担责任外,由人力资源社会保障行政部门、其他有关部门按照职责约谈建设单位负责人,并作为其业绩考核、薪酬分配、评优评先、职务晋升等的重要依据。第六十一条 对于建设资金不到位、违法违规开工建设的社会投资工程建设项目拖欠农民工工资的,由人力资源社会保障行政部门、其他有关部门按照职责依法对建设单位进行处罚;对建设单位负责人依法依规给予处分。相关部门工作人员未依法履行职责的,由有关机关依法依规给予处分。第六十二条 县级以上地方人民政府人力资源社会保障、发展改革、财政、公安等部门和相关行业工程建设主管部门工作人员,在履行农民工工资支付监督管理职责过程中滥用职权、玩忽职守、徇私舞弊的,依法依规给予处分;构成犯罪的,依法追究刑事责任。第七章 附  则第六十三条 用人单位一时难以支付拖欠的农民工工资或者拖欠农民工工资逃匿的,县级以上地方人民政府可以动用应急周转金,先行垫付用人单位拖欠的农民工部分工资或者基本生活费。对已经垫付的应急周转金,应当依法向拖欠农民工工资的用人单位进行追偿。第六十四条 本条例自2020年5月1日起施行。
  • 08

    2020/06

    人力资源社会保障部关于执行《工伤保险条例》若干问题的意见人社部发〔2013〕34号 各省、自治区、直辖市及新疆生产建设兵团人力资源社会保障厅(局):   《国务院关于修改〈工伤保险条例〉的决定》(国务院令第586号)已经于2011年1月1日实施。为贯彻执行新修订的《工伤保险条例》,妥善解决实际工作中的问题,更好地保障职工和用人单位的合法权益,现提出如下意见。         一、《工伤保险条例》(以下简称《条例》)第十四条第(五)项规定的“因工外出期间”的认定,应当考虑职工外出是否属于用人单位指派的因工作外出,遭受的事故伤害是否因工作原因所致。         二、《条例》第十四条第(六)项规定的“非本人主要责任”的认定,应当以有关机关出具的法律文书或者人民法院的生效裁决为依据。         三、《条例》第十六条第(一)项“故意犯罪”的认定,应当以司法机关的生效法律文书或者结论性意见为依据。         四、《条例》第十六条第(二)项“醉酒或者吸毒”的认定,应当以有关机关出具的法律文书或者人民法院的生效裁决为依据。无法获得上述证据的,可以结合相关证据认定。         五、社会保险行政部门受理工伤认定申请后,发现劳动关系存在争议且无法确认的,应告知当事人可以向劳动人事争议仲裁委员会申请仲裁。在此期间,作出工伤认定决定的时限中止,并书面通知申请工伤认定的当事人。劳动关系依法确认后,当事人应将有关法律文书送交受理工伤认定申请的社会保险行政部门,该部门自收到生效法律文书之日起恢复工伤认定程序。         六、符合《条例》第十五条第(一)项情形的,职工所在用人单位原则上应自职工死亡之日起5个工作日内向用人单位所在统筹地区社会保险行政部门报告。   七、具备用工主体资格的承包单位违反法律、法规规定,将承包业务转包、分包给不具备用工主体资格的组织或者自然人,该组织或者自然人招用的劳动者从事承包业务时因工伤亡的,由该具备用工主体资格的承包单位承担用人单位依法应承担的工伤保险责任。   八、曾经从事接触职业病危害作业、当时没有发现罹患职业病、离开工作岗位后被诊断或鉴定为职业病的符合下列条件的人员,可以自诊断、鉴定为职业病之日起一年内申请工伤认定,社会保险行政部门应当受理:   (一)办理退休手续后,未再从事接触职业病危害作业的退休人员;   (二)劳动或聘用合同期满后或者本人提出而解除劳动或聘用合同后,未再从事接触职业病危害作业的人员。   经工伤认定和劳动能力鉴定,前款第(一)项人员符合领取一次性伤残补助金条件的,按就高原则以本人退休前12个月平均月缴费工资或者确诊职业病前12个月的月平均养老金为基数计发。前款第(二)项人员被鉴定为一级至十级伤残、按《条例》规定应以本人工资作为基数享受相关待遇的,按本人终止或者解除劳动、聘用合同前12 个月平均月缴费工资计发。         九、按照本意见第八条规定被认定为工伤的职业病人员,职业病诊断证明书(或职业病诊断鉴定书)中明确的用人单位,在该职工从业期间依法为其缴纳工伤保险费的,按《条例》的规定,分别由工伤保险基金和用人单位支付工伤保险待遇;未依法为该职工缴纳工伤保险费的,由用人单位按照《条例》规定的相关项目和标准支付待遇。         十、职工在同一用人单位连续工作期间多次发生工伤的,符合《条例》第三十六、第三十七条规定领取相关待遇时,按照其在同一用人单位发生工伤的**伤残级别,计发一次性伤残就业补助金和一次性工伤医疗补助金。         十一、依据《条例》第四十二条的规定停止支付工伤保险待遇的,在停止支付待遇的情形消失后,自下月起恢复工伤保险待遇,停止支付的工伤保险待遇不予补发。         十二、《条例》第六十二条第三款规定的“新发生的费用”,是指用人单位职工参加工伤保险前发生工伤的,在参加工伤保险后新发生的费用。         十三、由工伤保险基金支付的各项待遇应按《条例》相关规定支付,不得采取将长期待遇改为一次性支付的办法。         十四、核定工伤职工工伤保险待遇时,若上一年度相关数据尚未公布,可暂按前一年度的全国城镇居民人均可支配收入、统筹地区职工月平均工资核定和计发,待相关数据公布后再重新核定,社会保险经办机构或者用人单位予以补发差额部分。   本意见自发文之日起执行,此前有关规定与本意见不一致的,按本意见执行。执行中有重大问题,请及时报告我部。 人力资源社会保障部 2013年4月25日   人力资源社会保障部关于执行《工伤保险条例》若干问题的意见(二)(人社部发〔2016〕29号) 各省、自治区、直辖市及新疆生产建设兵团人力资源社会保障厅(局):  为更好地贯彻执行新修订的《工伤保险条例》,提高依法行政能力和水平,妥善解决实际工作中的问题,保障职工和用人单位合法权益,现提出如下意见:  一、一级至四级工伤职工死亡,其近亲属同时符合领取工伤保险丧葬补助金、供养亲属抚恤金待遇和职工基本养老保险丧葬补助金、抚恤金待遇条件的,由其近亲属选择领取工伤保险或职工基本养老保险其中一种。  二、达到或超过法定退休年龄,但未办理退休手续或者未依法享受城镇职工基本养老保险待遇,继续在原用人单位工作期间受到事故伤害或患职业病的,用人单位依法承担工伤保险责任。  用人单位招用已经达到、超过法定退休年龄或已经领取城镇职工基本养老保险待遇的人员,在用工期间因工作原因受到事故伤害或患职业病的,如招用单位已按项目参保等方式为其缴纳工伤保险费的,应适用《工伤保险条例》。  三、《工伤保险条例》第六十二条规定的“新发生的费用”,是指用人单位参加工伤保险前发生工伤的职工,在参加工伤保险后新发生的费用。其中由工伤保险基金支付的费用,按不同情况予以处理:  (一)因工受伤的,支付参保后新发生的工伤医疗费、工伤康复费、住院伙食补助费、统筹地区以外就医交通食宿费、辅助器具配置费、生活护理费、一级至四级伤残职工伤残津贴,以及参保后解除劳动合同时的一次性工伤医疗补助金;  (二)因工死亡的,支付参保后新发生的符合条件的供养亲属抚恤金。  四、职工在参加用人单位组织或者受用人单位指派参加其他单位组织的活动中受到事故伤害的,应当视为工作原因,但参加与工作无关的活动除外。  五、职工因工作原因驻外,有固定的住所、有明确的作息时间,工伤认定时按照在驻在地当地正常工作的情形处理。  六、职工以上下班为目的、在合理时间内往返于工作单位和居住地之间的合理路线,视为上下班途中。  七、用人单位注册地与生产经营地不在同一统筹地区的,原则上应在注册地为职工参加工伤保险;未在注册地参加工伤保险的职工,可由用人单位在生产经营地为其参加工伤保险。  劳务派遣单位跨地区派遣劳动者,应根据《劳务派遣暂行规定》参加工伤保险。建筑施工企业按项目参保的,应在施工项目所在地参加工伤保险。  职工受到事故伤害或者患职业病后,在参保地进行工伤认定、劳动能力鉴定,并按照参保地的规定依法享受工伤保险待遇;未参加工伤保险的职工,应当在生产经营地进行工伤认定、劳动能力鉴定,并按照生产经营地的规定依法由用人单位支付工伤保险待遇。  八、有下列情形之一的,被延误的时间不计算在工伤认定申请时限内。  (一)受不可抗力影响的;  (二)职工由于被国家机关依法采取强制措施等人身自由受到限制不能申请工伤认定的;  (三)申请人正式提交了工伤认定申请,但因社会保险机构未登记或者材料遗失等原因造成申请超时限的;  (四)当事人就确认劳动关系申请劳动仲裁或提起民事诉讼的;  (五)其他符合法律法规规定的情形。  九、《工伤保险条例》第六十七条规定的“尚未完成工伤认定的”,是指在《工伤保险条例》施行前遭受事故伤害或被诊断鉴定为职业病,且在工伤认定申请法定时限内(从《工伤保险条例》施行之日起算)提出工伤认定申请,尚未做出工伤认定的情形。  十、因工伤认定申请人或者用人单位隐瞒有关情况或者提供虚假材料,导致工伤认定决定错误的,社会保险行政部门发现后,应当及时予以更正。  本意见自发文之日起执行,此前有关规定与本意见不一致的,按本意见执行。执行中有重大问题,请及时报告我部。  人力资源社会保障部  2016年3月28日 
  • 31

    2020/03

    各区人力资源社会保障局、各有关单位:   为贯彻落实中央和市委、市政府关于做好新型冠状病毒感染肺炎疫情防控的重要决策部署,根据人社部有关文件要求,全市各级人力资源社会保障部门要切实提高政治站位,把做好疫情防控工作作为当前工作的重中之重,实施好新型冠状病毒感染肺炎疫情防控的人力资源社会保障支持保障措施。现将有关事项通知如下:   一、高度重视防控工作,严防人员聚集性疫情发生   暂停举办大型招聘活动和跨地区劳务协作活动,改进招聘会、会议、培训等活动的组织形式,尽量减少人员聚集,能以视频形式召开的会议尽量召开视频会,能在线上开展的活动尽量在线上开展。全面优化和畅通线上网络招聘渠道,积极引导有用工需求的企业和求职需要的劳动者通过互联网实现供需对接。对于考试或者招聘等确需组织的活动,切实采取有效措施防范疫情。同时,做好服务对象的宣传解释工作。   二、强化人社窗口服务单位疫情防控措施   切实做好公共就业服务、社保经办、职业培训和技能鉴定、人才人事服务、劳动人事争议处理和信访等窗口服务单位的疫情防控安全措施,加大服务场所预防性消毒和通风力度。充分发挥“一网通办”平台作用,推行不见面服务,减少非必须的现场办理,科学安排业务办理流程,避免出现人员密集办理业务情况。   为一线工作人员配备口罩、手套等必备物资,对进入服务大厅的办事人员落实体温测量措施。加强对疫情科学防护措施的宣传教育工作,提高干部职工个人防护意识,养成良好个人卫生习惯,减少到人员密集区域的活动。   三、妥善做好疫情防控期间劳动关系工作   对新型冠状病毒感染的肺炎患者、疑似病人、密切接触者在其隔离治疗期间或医学观察期间以及因政府实施隔离措施或采取其他紧急措施导致不能提供正常劳动的企业职工,企业应当按正常出勤支付工资报酬,不得依据劳动合同法第四十条、四十一条与职工解除劳动合同。在此期间,劳动合同到期的,分别顺延至职工医疗期期满、医学观察期期满、隔离期期满或者政府采取的紧急措施结束。   对于在延长春节假期期间提供正常劳动的职工,企业应安排补休或按规定支付加班工资。企业因受疫情影响要求职工推迟复工,在一个工资支付周期内的,应按劳动合同规定的标准支付职工工资;超过一个工资支付周期的,支付的工资不得低于本市**工资标准。   企业因受疫情影响导致生产经营困难的,可以通过与职工协商一致采取调整薪酬、轮岗轮休、缩短工时等方式稳定工作岗位,尽量不裁员或者少裁员。   四、落实医护及相关人员工作保障   在新型冠状病毒感染肺炎预防和救治工作中,医护及相关工作人员因履行工作职责,感染新型冠状病毒肺炎或因感染新型冠状病毒肺炎死亡的,应认定为工伤,依法享受工伤保险待遇。   已参加工伤保险的上述工作人员发生的相关费用,由工伤保险基金和单位按工伤保险有关规定支付;未参加工伤保险的,由用人单位按照法定标准支付,财政补助单位因此发生的费用,由同级财政予以补助。全市各级人力资源社会保障部门和社保经办机构要全力以赴,搞好服务,开设“绿色通道”,及时做好上述人员的工伤认定和待遇支付工作。   按照《人力资源社会保障部 财政部关于建立传染病疫情防治人员临时性工作补助的通知》(人社部规〔2016〕4号)的规定,以及此次应对疫情工作的新要求,落实疫情防治人员临时性工作补助政策。   五、切实维护劳动者合法权益   因受疫情影响造成当事人不能在法定仲裁时效期间申请劳动人事争议仲裁的,仲裁时效中止。从中止时效的原因消除之日起,仲裁时效期间继续计算。因受疫情影响导致劳动人事争议仲裁机构难以按法定时限审理案件的,可相应顺延审理期限。   全市各级人力资源社会保障部门要加强对受疫情影响企业的劳动用工指导和服务,保障企业正常生产经营秩序。加大劳动保障监察执法力度,切实维护保障职工合法权益。   特此通知。   上海市人力资源和社会保障局  2020年1月27日 
  • 20

    2020/02

    企业是否可以疫情为由解除劳动合同?       这次疫情对很多企业造成很大的影响,有些企业为了降低人力成本要求裁员。企业是否可以疫情为由解除劳动合同呢?这要具体情况具体分析。       因疫情的原因导致企业解散的,企业可以根据依法与其员工解除劳动合同,但应该支付经济补偿金。       因疫情导致企业不得不缩减规模,需要裁员的,企业应该依据法定裁员程序裁员,解除劳动合同。  对因疫情导致劳动者暂不能返岗提供正常劳动的,企业不得解除劳动合同或退回劳务派遣用工。企业停工在一个工资支付周期内的,应照常支付 工资,  超过一个月的,可以根据员工提供的劳动支付劳动报酬,但不得低于*低工资标准。
  • 20

    2020/02

    根据《上海市企业工资支付办法》和《上海市劳动局关于加强企业职工疾病休假管理保障职工疾病休假期间生活的通知》的规定,病假工资取决于病假工资计算基数和病假工资计算比例,病假工资计算基数乘以病假工资计算比例的乘积就是应发病假工资。具体如下:一、计算病假工资的基数  根据《上海市企业工资支付办法》第九条的规定,病假工资的计算基数为劳动者所在岗位相对应的正常出勤月工资,不包括年终奖,上下班交通补贴、工作餐补贴、住房补贴,中夜班津贴、夏季高温津贴、加班工资等特殊情况下支付的工资。       病假工资计算基数按以下原则确定:  1、劳动合同对劳动者月工资有明确约定的,按合同约定劳动者所在岗位相对应的月工资确定;实际履行与合同约定不一致的,按实际履行的劳动者所在岗位相对应的月工资确定。  2、劳动合同对劳动者月工资未明确约定,集体合同对岗位相对应的月工资有约定的,按集体合同约定的与劳动者岗位相对应的月工资确定。  3、劳动合同、集体合同对劳动者月工资均无约定的,按劳动者正常出勤月依照《上海市企业工资支付办法》第二条规定的工资(不包括加班工资)的70%确定。  病假工资的计算基数不得低于本市规定的*低工资标准。二、病假工资计算比例  职工因病或非因工负伤连续休假在6个月以内的,企业应按下列标准支付病假工资:  (1)连续工龄不满2年的,按本人工资的60%计发;  (2)连续工龄满2年不满4年的,按本人工资的70%计发;  (3)连续工龄满4年不满6年的,按本人工资的80%计发;  (4)连续工龄满6年不满8年的,按本人工资的90%计发;  (5)连续工龄满8年及以上的,按本人工资的100%计发。  职工因病或非因工负伤连续休假超过6个月的,企业应支付的病假工资(疾病救济费)标准是多少?  企业应按下列标准支付病假工资(疾病救济费):  (1)连续工龄不满1年的,按本人工资的40%计发;  (2)连续工龄满1年不满3年的,按本人工资的50%计发;  (3)连续工龄满3年及以上的,按本人工资的60%计发。三、*低病假工资标准  根据沪劳保发(2000)14号规定:职工疾病休假工资或疾病救济费*低不得低于当年本市企业职工*低工资的80%。*低标准中不包括应由职工个人缴交的养老、医疗、失业保险费和住房公积金。
  • 20

    2020/02

    上海市劳动局关于加强企业职工疾病休假管理保障职工疾病休假期间生活的通 知文号: 沪劳保发〔1995〕83号  发文机关:上海市劳动局 发布日期: 1995.09.29 时效性: 现行有效    为加强企业职工疾病和非因工负伤休假管理,保障职工疾病休假期间的基本生活,依照《*******劳动 保险条例》,现对有关问题通知如下:一、建立、健全劳动能力鉴定制度,维护企业和职工的合法权益。 企业应根据《上海市职工劳动能力鉴定工作暂行办法》,建立、健全劳动能力鉴定委员会(小组)定期对长休假 职工进行劳动能力鉴定,实事求是地安排职工休息、治疗、复工或适当调整工种。对职工疾病中的疑难、争议的案件 应及时呈报企业所在地的区、县劳动能力鉴定委员会。二、坚持和完善企业职工的疾病、非因工负伤休假和复工办法。职工疾病需要休假的,应凭企业医疗机构或指 定医院开具的《病情证明单》,并由企业行政审核批准。职工疾病或非因工负伤需要转入长休的,应根据企业医疗机 构或指定医院开具的《病情证明单》,由企业劳动能力鉴定委员会(小组)作出鉴定,报企业行政批准,并书面通知职 工。三、职工疾病或非因工负伤休假日数应按实际休假日数计算,连续休假期内含有休息日、节假日的应予剔除。四、职工疾病或非因工负伤连续休假在6个月以内的,企业应按下列标准支付疾病休假工资:连续工龄不满2年 的,按本人工资的60%计发;连续工龄满2年不满4年的,按本人工资的70%计发;连续工龄满4年不满6年的,按本人 工资的80%计发;连续工龄满6年不满8年的,按本人工资的90%计发;连续工龄满8年及以上的,按本人工资的100% 计发。 职工疾病或非因工负伤连续休假超过6个月的,由企业支付疾病救济费,其中连续工龄不满1年的,按本人工资 的40%计发;连续工龄满1年不满3年的,按本人工资的50%计发;连续工龄满3年及以上的,按本人工资的60%计 发。 本人工资按职工正常情况下实得工资的70%计算。五、职工疾病或非因工负伤休假待遇低于本企业月平均工资40%的,应补足到本企业月平均工资的40%。企业 月平均工资的40%低于本市在职职工定期生活困难补助标准的,应补足到本市在职职工定期生活困难补助标准。 职工疾病或非因工负伤待遇高于本市上年度月平均工资的,可按本市上年度月平均工资计发。六、企业可根据本通知精神,结合企业实际情况,制定企业职工疾病和非因工负伤管理办法。企业现行的职工 疾病、非因工负伤休假期间的待遇计发办法高于本通知规定的,可继续保留。七、本通知自1995年10月1日起执行。
  • 09

    2020/02

      为维护劳动者通过劳动获得劳动报酬的权利,规范企业的工资支付行为,根据《*******劳动法》、《*******劳动合同法》和有关法律、法规的规定,结合本市实际情况,制定本办法。  一、本办法适用于本市行政区域内的各类企业和与之形成劳动关系的劳动者。个体经济组织、民办非企业单位以及依法成立的会计师事务所、律师事务所、基金会等组织和与之形成劳动关系的劳动者参照执行。  二、本办法所称工资是指企业根据国家和本市的规定,以货币形式支付给劳动者的劳动报酬,包括计时工资、计件工资、奖金、津贴、补贴、加班工资等。  三、工资应当以法定货币形式支付。  四、企业通过银行发放工资的,应当按时将工资划入劳动者本人账户。  企业直接发放工资的,应当将工资支付给劳动者本人,并办理签收手续。劳动者本人因故不能领取工资时,可由其委托亲属或他人代领。  五、企业应当书面记载支付劳动者工资的数额、项目、时间、本人姓名等,并按有关规定保存备查。企业不管以何种形式发放工资,都应当向劳动者提供一份本人的工资清单。  六、企业应当每月至少支付一次工资,支付工资的具体日期由企业与劳动者约定。如遇法定休假节日或休息日,通过银行发放工资的,不得推迟支付工资;直接发放工资的,应提前支付工资。  对实行年薪制或按考核周期兑现工资的劳动者,企业应当每月按不低于*低工资的标准预付工资,年终或考核周期期满时结算。  七、企业与劳动者终止或依法解除劳动合同的,企业应当在与劳动者办妥手续时,一次性付清劳动者的工资。对特殊情况双方有约定且不违反法律、法规规定的,从其约定。  八、劳动者在法定工作时间内依法参加社会活动的,企业应视同其提供了正常劳动而支付工资。  九、企业安排劳动者加班的,应当按规定支付加班工资。劳动者在依法享受婚假、丧假、探亲假、病假等假期期间,企业应当按规定支付假期工资。  加班工资和假期工资的计算基数为劳动者所在岗位相对应的正常出勤月工资,不包括年终奖,上下班交通补贴、工作餐补贴、住房补贴,中夜班津贴、夏季高温津贴、加班工资等特殊情况下支付的工资。  加班工资和假期工资的计算基数按以下原则确定:  (一)劳动合同对劳动者月工资有明确约定的,按劳动合同约定的劳动者所在岗位相对应的月工资确定;实际履行与劳动合同约定不一致的,按实际履行的劳动者所在岗位相对应的月工资确定。  (二)劳动合同对劳动者月工资未明确约定,集体合同(工资专项集体合同)对岗位相对应的月工资有约定的,按集体合同(工资专项集体合同)约定的与劳动者岗位相对应的月工资确定。  (三)劳动合同、集体合同(工资专项集体合同)对劳动者月工资均无约定的,按劳动者正常出勤月依照本办法第二条规定的工资(不包括加班工资)的70%确定。  加班工资和假期工资的计算基数不得低于本市规定的*低工资标准。法律、法规另有规定的,从其规定。  十、企业确因生产经营困难,资金周转受到影响,暂时无法按时支付工资的,经与本企业工会或职工代表协商一致,可以延期在一个月内支付劳动者工资,延期支付工资的时间应告知全体劳动者。  十一、劳动者在试用期间提供了正常劳动,企业支付的工资不得低于本企业相同岗位*低档工资的80%或者不得低于劳动合同约定工资的80%,并不得低于本市规定的*低工资标准。  十二、企业停工、停产在一个工资支付周期内的,应当按约定支付劳动者工资。超过一个工资支付周期的,企业可根据劳动者提供的劳动,按双方新的约定支付工资,但不得低于本市规定的*低工资标准。  十三、企业根据实际需要安排劳动者在法定标准工作时间以外工作的,应以本办法第九条确定的计算基数,按以下标准支付加班工资:  (一)安排劳动者在日法定标准工作时间以外延长工作时间的,按照不低于劳动者本人小时工资的150%支付;  (二)安排劳动者在休息日工作,而又不能安排补休的,按照不低于劳动者本人日或小时工资的200%支付;  (三)安排劳动者在法定休假节日工作的,按照不低于劳动者本人日或小时工资的300%支付。  企业依法安排实行计件工资制的劳动者完成计件定额任务后,在法定标准工作时间以外工作的,应当根据以上原则相应调整计件单价。计件定额应通过一定的民主管理程序合理制定。  经人力资源社会保障行政部门批准实行综合计算工时工作制的企业,劳动者综合计算工作时间超过法定标准工作时间的,应当视为延长工作时间,并按本条第(一)项的规定支付劳动者延长工作时间的加班工资;企业在法定休假节日安排劳动者工作的,按本条第(三)项的规定支付加班工资。  经人力资源社会保障行政部门批准实行不定时工时制的劳动者,在法定休假节日由企业安排工作的,按本条第(三)项的规定支付加班工资。  在妇女节、青年节等部分公民休假的节日期间,对参加社会或企业组织的庆祝活动和照常工作的劳动者,企业应支付工资,但不支付加班工资。如果该节日恰逢休息日,企业安排劳动者工作的,应当按本条第(二)项的规定支付加班工资。  十四、日工资按月工资除以每月平均计薪天数21.75天计算;小时工资按日工资除以8小时计算。  十五、在采取公共卫生预防控制措施时,劳动者疑似患传染病或者病原携带者的密切接触者,经隔离观察后排除的,企业应当视同劳动者提供正常劳动,支付其隔离观察期间的工资。  十六、被人民法院判处管制、缓刑的劳动者,继续在原企业工作的,企业应当支付劳动者工资。  十七、劳动者违反劳动纪律或规章制度,企业降低其工资的,降低后的工资不得低于本市规定的*低工资标准。  十八、劳动者因涉嫌违法犯罪被拘押或者其他客观原因,使劳动合同无法履行的,企业不支付劳动者工资,但法律、法规另有规定或者双方另有约定的除外。  十九、企业破产时,欠付劳动者的工资应当按照《*******企业破产法》、《*******公司法》规定的清偿顺序予以清偿。  二十、企业不得克扣劳动者工资。有下列情况之一的,企业可以代扣工资:  (一)代缴应由劳动者个人缴纳的个人所得税;  (二)代缴应由劳动者个人承担的社会保险费和住房公积金;  (三)按法院判决、裁定代扣的抚养费、赡养费;  (四)法律、法规规定可以从劳动者工资中扣除的其他费用。  二十一、企业克扣或者无故拖欠劳动者工资,低于*低工资标准支付劳动者工资,以及安排劳动者加班不按规定支付加班工资的,由人力资源社会保障行政部门责令企业按规定限期支付;逾期不支付的,还应按应付金额百分之五十以上百分之一百以下的标准向劳动者加付赔偿金。  二十二、劳动者因本人原因给企业造成经济损失,企业依法要其赔偿,并需从工资中扣除赔偿费的,扣除的部分不得超过劳动者当月工资的20%,且扣除后的剩余工资不得低于本市规定的*低工资标准。  二十三、企业解除劳动者的劳动合同,引起劳动争议,劳动人事争议仲裁部门或人民法院裁决撤消企业原决定,并且双方恢复劳动关系的,企业应当支付劳动者在调解、仲裁、诉讼期间的工资。其标准为企业解除劳动合同前12个月劳动者本人的月平均工资乘以停发月数。双方都有责任的,根据责任大小各自承担相应的责任。  二十四、非全日制就业的劳动者,小时工资由企业与劳动者约定,但不得低于本市规定的小时*低工资标准,且支付周期*长不得超过十五日。  二十五、企业与职工代表可以根据本办法确定的原则,通过工资集体协商等民主管理程序,制定本企业的工资支付办法,并告知本企业的全体劳动者。  二十六、劳动者与企业因工资支付发生劳动争议的,当事人可以依法申请调解、仲裁,提起诉讼。劳动者认为企业侵犯其工资权益的,有权向人力资源社会保障行政部门投诉或举报。  二十七、本办法自2016年8月1日起执行,有效期5年。原《关于印发〈上海市企业工资支付办法〉的通知》(沪劳保综发〔2003〕2号)同时废止。 
  • 14

    2020/01

    关于持有《外国人永久居留证》的海外高层次人才直接办理《上海市海外人才居住证》的实施办法  为贯彻落实《中共中央印发〈关于深化人才发展体制机制改革的意见〉的通知》(中发〔2016〕9号),进一步为海外高层次人才在本市创新创业和生活提供便利,使本市持有《外国人永久居留证》的海外高层次人才可直接办理《上海市海外人才居住证》(以下简称B证),并享受相关待遇。为确保政策落地,特制定本实施办法。  一、适用对象  具有本科(学士)及以上学历(学位),在本市合法工作或创业,持有《外国人永久居留证》的海外高层次人才,可直接申请办理与其《外国人永久居留证》有效期相匹配的B证。  二、有效期核定  根据《上海市海外人才居住证管理办法实施细则》(沪人社外发〔2015〕33号,以下简称《实施细则》)精神,在现有《上海市海外人才居住证有效期限核定标准》的框架内,对持有《外国人永久居留证》的海外高层次人才,直接给予附加分100分。根据其*终得分和《外国人永久居留证》的有效期核定B证的有效期,*长不超过10年。  三、办理流程  根据《实施细则》,申办B证的海外高层次人才可由其用人单位至市人才服务中心、浦东新区人才交流中心、杨浦区海外高层次人才创新创业服务中心、中国(上海)自由贸易试验区国际人才服务中心、长宁区海外人才受理窗口等进行申请。  办理流程按照《实施细则》操作。  四、申请材料  持有《外国人永久居留证》或已向市公安局申请《外国人永久居留证》的海外高层次人才在**申请办理B证时可简化手续,提交下列材料:  (一)《上海市海外人才居住证》申请表。  (二)有效的护照。  (三)《外国人永久居留证》或市公安局出具的《外国人永久居留证》申请已受理的证明。  (四)*高学历(学位)证书。留学人员还需提交《国外学历学位认证书》或《留学回国人员证明》。  (五)聘用(劳动)合同,有效期需在12个月以上(如系投资人,需提供上一年度的审计报告)。  (六)其他需要的证明材料。  随行人员办理B证的,另需提供以下材料:  (一)随行人员的有效身份证明。  (二)随行配偶需提供结婚证明,随行子女需提供出生证明。  以上材料除《上海市海外人才居住证》申请表需提供原件外,其他均需提供复印件,验原件。  五、持证人待遇  根据《上海市海外人才居住证管理办法》(沪府发〔2015〕32号)规定,持有B证的人员可在本市享有居留许可、创办企业、行政机关聘用、社会保险、子女教育、资格评定、驾驶证照办理等多方面的市民待遇。  为进一步支持海外高层次人才在本市创新创业,持有B证的人员还可以在本市享有以下待遇:  (一)持B证的留学回国人员、港澳台专才,可按规定申请《上海市促进人才发展专项资金》的相关人才专项。  (二)持5年有效期B证的外籍人才,可由市人力资源社会保障局出具人才证明,向市公安局申办5年有效期的工作类居留许可(加注“人才”),工作满3年后,经工作单位推荐申请《外国人永久居留证》。  (三)持3年有效期B证的香港、澳门专才,可在放弃港、澳身份的基础上,申请办理本市常住户口。  (四)凡是持有2年以上有效期《外国专家证》的外籍高层次人才,可简化材料,直接申请2年以上有效期的B证。  (五)持有效B证的海外高层次人才,可简化手续,由市人力资源社会保障局出具高层次人才证明,以个人随身携带、分离运输、邮递、快递等方式进出境科研、教学和自用物品,海关给予通关便利。对其随身携带的进出境物品,除特殊情况外,海关可以不予开箱查验。  (六)持有效B证人员在本市就业期间,按规定参加社会保险后,单位和个人缴纳基本养老和医疗保险的缴费年限可累计计算;工作发生变动时,可转移接续。符合条件的,依法享受社会保险待遇。  (七)持B证人员在与单位协商一致的基础上可按本市现行规定缴存住房公积金,用于购房、自住住房的房租或物业费等住房消费。与本市用人单位解除或终止劳动(聘用)关系的,可按规定办理住房公积金账户的封存、转移等手续。  六、本实施办法自2016年9月1日起实施,有效期至2021年8月31日。
  • 14

    2020/01

      第一章 总则  第一条(目的和依据)  为规范本市事业单位聘用合同管理,保障聘用合同双方的合法权益,根据《事业单位人事管理条例》(国务院令第652号)及国家相关规定,结合本市实际,制定本办法。  第二条(适用范围)  本市行政区域内的事业单位(以下称:聘用单位)与其工作人员(以下称:受聘人员)建立聘用关系,订立、履行、续订、变更、解除或者终止聘用合同,适用本办法。  参照公务员法管理的事业单位工作人员,不适用本办法。  党内法规和法律、法规对事业单位中领导人员管理另有规定的,按照有关规定执行。  第三条(聘用合同定义)  聘用合同是指聘用单位与受聘人员建立聘用关系,明确双方权利和义务的协议。  第四条(聘用合同订立形式)  聘用合同应当以书面形式订立。  第五条(订立和变更聘用合同的原则)  订立和变更聘用合同,应当充分体现社会公益属性,并遵循合法、公平、平等自愿、协商一致的原则。  依法订立的聘用合同具有法律约束力,当事人应当履行聘用合同约定的义务,并享有合同约定的权利。  第六条(各级主管部门职责)  市事业单位人事综合管理部门负责制定全市事业单位聘用合同管理政策,并承担指导和监督检查的职责。  各区事业单位人事综合管理部门负责本区事业单位聘用合同的管理工作,并承担指导和监督检查的职责。  聘用单位主管部门负责监督指导所属事业单位聘用合同制度的组织实施。  第二章  人员的聘用  第七条(聘用方式)  聘用单位应根据核定的编制数和岗位设置方案,以及岗位任职条件聘用人员,可以在本单位现有人员中实行竞聘上岗,也可以面向社会公开招聘。  党内法规和法律、法规另有规定的,按照有关规定执行。  第八条(聘用工作组织)  聘用单位应当成立聘用工作组织,就人员的聘用、考核、续聘、解聘等具体事项提出意见。  聘用工作组织由本单位人事工作负责人、纪检监察工作负责人、工会代表或者职工代表组成,可以吸收相关专家或者其他有关方面人员参加。  第九条(公开招聘程序)  聘用单位面向社会公开招聘人员,按照国家和本市有关规定执行。  第十条(竞聘上岗程序)  聘用单位在本单位现有人员中实行竞聘上岗的,按照以下程序执行:  (一)制定竞聘上岗方案;  (二)在本单位公布竞聘岗位、资格条件、聘期等信息;  (三)审查竞聘人员资格条件;  (四)考评;  (五)在本单位公示拟聘人员名单;  (六)办理聘任手续。  按照国家和本市相关规定,应当由相关主管部门组织学术评议的专业技术岗位的聘用,按照相关规定执行。  第十一条(续聘)  聘用合同期满,因岗位需要,聘期考核合格,受聘人员愿意续聘的,聘用单位可以续聘其从事原岗位工作。  第十二条(回避制度)  受聘人员与聘用单位负责人员有夫妻关系、直系血亲关系、三代以内旁系血亲或者近姻亲关系的,不得被聘用从事该单位人事、财务、纪检监察岗位的工作,也不得在与聘用单位负责人员有直接上下级领导关系的岗位上工作。  聘用工作组织成员在办理人员聘用事项时,遇有上述亲属关系的,应当回避。  第三章  聘用合同的订立  第十三条(当事人知情权)  聘用合同订立前,一方当事人有权向另一方当事人了解与其建立聘用关系相关的情况,双方均应当如实说明。  第十四条(聘用合同基本内容)  聘用合同应当具备以下条款:  (一)聘用合同期限;  (二)岗位及其职责要求;  (三)岗位纪律;  (四)岗位工作条件;  (五)工资福利待遇;  (六)聘用合同变更和终止的条件;  (七)违反聘用合同的责任;  (八)法律、法规规定应当纳入聘用合同的其他事项。  聘用合同除前款规定的必备条款外,当事人可以协商约定试用期、培训和继续教育、知识产权保护、解聘提前通知时限等条款。  第十五条(聘用合同期限)  聘用合同的期限由双方当事人协商确定,一般不低于3年。  受聘人员在本单位连续工作满10年且距法定退休年龄不足10年,提出订立聘用至退休的合同的,聘用单位应当与其订立聘用至退休的合同。  第十六条(聘用合同生效期限)  聘用合同自双方当事人签字之日起生效,当事人对生效的期限或者条件另有约定的,从其约定。  第十七条(试用期约定)  初次就业的受聘人员与聘用单位订立的聘用合同期限3年(含)以上的,试用期为12个月。  除前款规定情形外,试用期不得超过6个月。  第十八条(服务期约定)  聘用合同当事人可以对由聘用单位出资招聘、培训或者提供其他特殊待遇的受聘人员的服务期作出约定。  第十九条(保密、脱密规定)  受聘人员在涉及国家秘密岗位工作的,应当遵守国家和本市有关涉密人员管理的规定。  受聘人员在涉及聘用单位秘密的岗位工作的,聘用合同当事人可以在聘用合同或者保密协议中约定保密义务。双方就受聘人员解聘提前通知时限作出约定的,提前通知时限不得超过6个月。  第二十条(违约金约定)  聘用合同对受聘人员的违约行为约定违约金的,仅限于下列情形:  (一)违反服务期约定的;  (二)违反保守单位秘密约定的。  违约金数额应当遵循公平、合理的原则约定。  第二十一条(聘用合同的续订)  聘用合同期满,符合续聘条件的,经当事人协商一致,可以续订聘用合同。  续订聘用合同不得约定试用期。  第二十二条(聘用合同的无效)  具有下列情形之一的,聘用合同无效或部分无效:  (一)违反法律、法规强制性规定订立或变更的;  (二)采取欺诈、胁迫等不正当手段,使对方在违背真实意愿情况下订立或变更的。  无效的合同,自订立起就没有法律约束力。聘用合同部分无效的,不影响其他部分的效力,其他部分仍然有效。  聘用合同的无效或部分无效,由人事争议仲裁机构或人民法院确认。  第四章  聘用合同的履行和变更  第二十三条(聘用合同实际履行时间)  聘用合同起始时间与实际履行时间不一致的,以实际履行时间为准。  第二十四条(受聘人员的考核)  聘用单位应当按照国家规定,以及聘用合同约定的岗位职责任务,全面考核受聘人员的表现,重点考核工作绩效。考核应当听取服务对象的意见和评价。 聘用工作组织对受聘人员提出考核档次意见后,由单位负责人员集体决定考核结果。  考核结果作为受聘人员续聘、调整岗位、解聘的依据。  第二十五条(聘用合同的变更)  聘用合同当事人协商一致,可以变更聘用合同。  受聘人员年度考核不合格的,聘用单位可以调整其工作岗位,并相应变更聘用合同。  变更聘用合同应当采用书面形式。  第二十六条(专业技术人员创新创业的聘用合同变更)  受聘人员中专业技术人员依照规定开展创新创业,具有下列情形之一,聘用单位应当与其变更聘用合同:  (一)选派到企业挂职或者参与项目合作的;  (二)到与本单位业务领域相近企业、科研机构、高校、社会组织等兼职的;  (三)利用与本人从事专业相关的创业项目在职创办企业的;  (四)带着科研项目和成果离岗创办科技型企业或者到企业开展创新工作的;  (五)法律、法规规定的其他情形。  具体变更内容由双方协商确定,主要包括:时间期限、基本待遇、保密义务、知识产权保护、成果归属和权益分配等内容。  第二十七条(聘用单位合并、分立后聘用合同的履行)  聘用单位合并、分立的,聘用合同由合并、分立后的聘用单位继续履行;具有下列情形之一,聘用合同可以变更或者解除:  (一)当事人协商一致;  (二)聘用合同另有约定。  第二十八条(应当订立而未订立书面合同)  应当订立书面聘用合同而未订立,但受聘人员按照聘用单位要求履行了工作义务的,当事人的聘用关系成立,受聘人员的工作条件、工资福利待遇等依法依规进行确定。  第五章  聘用合同的解除和终止  第二十九条(聘用单位应当解除聘用合同的情形)  受聘人员具有下列情形之一,聘用单位应当解除聘用合同:  (一)试用期满考核不合格的;  (二)被判处有期徒刑(含)以上刑罚的;  (三)受到开除处分的;  (四)在公开招聘中违反规定存在违规违纪行为的;  (五)法律、法规规定的其他情形。  第三十条(聘用合同的协商解除)  经聘用合同当事人协商一致,聘用合同可以解除。  第三十一条(聘用合同的过失性解除)  受聘人员具有下列情形之一的,聘用单位可以书面通知受聘人员,单方面解除聘用合同:  (一)在试用期内被证明不符合本岗位要求又不同意单位调整其工作岗位的;  (二)连续旷工超过15个工作日或者1年内累计旷工超过30个工作日的;  (三)未经聘用单位同意,擅自出国或者出国逾期不归的;  (四)违反工作规定或者操作规程,发生责任事故,或者失职、渎职,造成严重后果的;  (五)严重扰乱工作秩序,致使本单位、其他单位工作不能正常进行的;  (六)被判处拘役、管制的;  (七)法律、法规规定的其他情形。  第三十二条(聘用合同的非过失性解除)  受聘人员具有下列情形之一的,聘用单位可以解除聘用合同,但是应当提前30日以书面形式通知受聘人员,或者额外支付受聘人员一个月工资:  (一)受聘人员患病或者非因工负伤,医疗期满后,不能从事原工作也不能从事聘用单位安排的其他工作的;  (二)受聘人员年度考核不合格且不同意调整工作岗位,或者连续两年年度考核不合格的;  (三)聘用合同订立时所依据的客观情况发生重大变化,致使原聘用合同无法履行,经当事人协商不能就变更聘用合同达成一致的。  第三十三条(聘用单位不得解除聘用合同的情形)  受聘人员具有下列情形之一的,聘用单位不得依据本管理办法第三十一条第(一)项、第三十二条解除聘用合同:  (一)受聘人员患病或者负伤,在规定的医疗期内的;  (二)女职工在孕期、产期和哺乳期内的;  (三)因工负伤,经治疗伤情相对稳定后,经劳动能力鉴定机构鉴定为1至4级伤残等级的;  (四)从事接触职业病危害作业的受聘人员未进行离岗前职业健康检查,或者疑似职业病病人在诊断或者医学观察期间的;  (五)患职业病以及现有医疗条件下难以治愈的严重疾病或者精神病的;  (六)属于本办法第二十六条规定的情形开展创新创业的;  (七)法律、法规规定的其他情形。  第三十四条(暂缓办理解除、终止聘用合同手续)  受聘人员在行政处分立案调查期间或正在接受纪律审查或监察调查尚未作出结论的,暂缓办理解除、终止聘用合同手续,受聘人员的工资福利待遇,依法依规进行确定。  第三十五条(受聘人员随时解除聘用合同的情形)  具有下列情形之一的,受聘人员可以书面通知聘用单位,解除聘用合同:  (一)在试用期内的;  (二)考入全日制普通高等院校或科研院所的;  (三)被录用、选调或聘任到国家机关工作的;  (四)依法服兵役的;  (五)聘用单位未按照聘用合同约定支付工资报酬、提供工作条件和福利待遇的;  (六)聘用单位以暴力、胁迫或者非法限制人身自由等手段强迫工作的。  第三十六条(受聘人员提前30日解除合同)  除本办法第三十五条规定情形外,受聘人员提前30日书面通知聘用单位,可以解除聘用合同。但是,双方对解除聘用合同另有约定的,从其约定。  第三十七条(聘用合同终止的情形)  具有下列情形之一的,聘用合同终止:  (一)聘用合同期满的;  (二)当事人约定的聘用合同终止条件出现的;  (三)受聘人员开始依法享受基本养老保险待遇或者达到法定退休年龄的;  (四)受聘人员死亡,或者被人民法院宣告死亡或者宣告失踪的;  (五)聘用单位被撤销、解散的;  (六)法律、法规规定的其他情形。  第三十八条(聘用单位不得终止聘用合同的情形)  聘用合同期满或者当事人约定的聘用合同终止条件出现,受聘人员具有下列情形之一的,聘用单位不得终止聘用合同:  (一)因工负伤,经治疗伤情相对稳定后,经劳动能力鉴定机构鉴定为1至4级伤残等级的;  (二)患职业病以及现有医疗条件下难以治愈的严重疾病或者精神病的;  (三)法律、法规规定的其他情形。  第三十九条(特殊情形的聘用合同期限顺延)  聘用合同期满或者当事人约定的聘用合同终止条件出现,受聘人员具有下列情形之一,同时不属于本办法第三十一条第(二)、(三)、(四)、(五)、(六)项规定的,聘用合同期限顺延至下列情形消失:  (一)受聘人员患病或者负伤,在规定的医疗期内的;  (二)女职工在孕期、产期和哺乳期内的;  (三)从事接触职业病危害作业的受聘人员未进行离岗前职业健康检查,或者疑似职业病病人在诊断或者医学观察期间的;  (四)处于行政处分立案调查期间,或正在接受纪律审查或监察调查尚未作出结论的;  (五)属于本办法第二十六条第(四)项情形离岗创新创业的;  (六)法律、法规规定的其他情形。  第四十条(应当订立而未订立聘用合同的终止)  聘用单位应当订立聘用合同而未订立的,受聘人员可以终止聘用关系。  由于受聘人员的原因,双方存在事实聘用关系但未订立聘用合同的,聘用单位提前30日通知受聘人员或者额外支付1个月工资,可以终止聘用关系。受聘人员具有本办法第三十八条、第三十九条规定的情形的,按前述规定处理。法律、法规另有规定的,从其规定。  第四十一条(解除或者终止聘用合同后的手续)  聘用合同解除或者终止,聘用单位应当出具解除或者终止聘用合同的有效证明,并按照国家和本市有关规定及时办理社会保险关系转移手续或者封存。  第四十二条(解除或者终止聘用合同的经济补偿)  具有下列情形之一的,聘用单位应当按照受聘人员在本单位实际工作年限,每工作1年给予1个月工资的标准,进行经济补偿:  (一)聘用单位提出解除聘用合同,受聘人员同意解除的;  (二)受聘人员患病或者非因工负伤,医疗期满后,不能从事原工作也不能从事由单位安排的其他工作,聘用单位单方面解除聘用合同的;  (三)受聘人员年度考核不合格且不同意调整工作岗位,或者连续两年年度考核不合格,聘用单位单方面解除聘用合同的;  (四)聘用合同订立时所依据的客观情况发生重大变化,致使原聘用合同无法履行,经当事人协商不能就变更聘用合同达成一致,由聘用单位单方面解除合同的;  (五)聘用单位未按照聘用合同约定支付工资报酬、提供工作条件和福利待遇的;  (六)聘用单位以暴力、胁迫或者非法限制人身自由等手段强迫工作的;  (七)聘用单位被撤销、解散,不能安置受聘人员就业或者接受安置单位重新计算本单位工作年限的。  第四十三条(经济补偿金的计算标准)  计算经济补偿以受聘人员上年月平均收入为标准;上年聘用不满12个月但聘用期限满12个月的,以解除或者终止聘用合同前12个月的月平均收入为标准;聘用期限不满12个月的,以实际聘用月份数计算月平均收入。  受聘人员月平均收入高于上年度本市职工平均工资3倍以上的,按上年度本市职工平均工资的3倍支付经济补偿金。  受聘人员在聘用单位工作年限,满6个月不满1年的,按1年计算;不满6个月的,按半年计算。  第四十四条(医疗补助费)  聘用单位依据本办法第三十二条第(一)项的规定解除聘用合同的,除按规定给予经济补偿外,还应当支付相当于6个月工资的医疗补助费。  第六章  法律责任  第四十五条(订立无效聘用合同的赔偿责任)  由于聘用合同一方当事人的原因导致聘用合同无效或者部分无效,给对方造成损害的,应当承担赔偿责任。  第四十六条(违反聘用合同约定的赔偿责任)  聘用合同当事人违反聘用合同约定的,应当承担相应的责任。给对方造成经济损失的,应当承担赔偿责任。  聘用合同当事人都违反聘用合同约定的,应当各自承担相应的责任。  第四十七条(违反本办法的行政责任)  聘用单位违反本办法的,由聘用单位主管部门责令限期改正;造成严重后果的,按照干部人事管理权限,由聘用单位主管部门或者聘用单位依照有关规定给予单位主要负责人、直接责任人行政处分。  第四十八条(聘用合同争议处理)  聘用合同当事人因聘用合同发生争议的,依照聘用合同争议处理的有关规定处理。  第七章  附则  第四十九条(与已生效原聘用合同的衔接)  本办法实施前,已经生效的聘用合同,聘用合同当事人应当继续履行;聘用合同当事人协商一致的,可以按照本办法的规定变更聘用合同。  本办法实施后订立、续订聘用合同的,按照本办法的规定执行。  第五十条(参照执行对象)  社会团体中使用事业单位编制的工作人员,除经批准参照公务员法管理的以外,参照本办法的规定执行。  第五十一条(施行日期)  本管理办法自2019年1月1日起实施,有效期至2023年12月31日。 
  • 06

    2020/01

      为全面贯彻党的十九大和十九届二中、三中、四中全会精神,落实国家长三角区域一体化发展战略,加强劳动人事争议仲裁与诉讼衔接机制建设,提升劳动人事争议案件处理质效,针对经济形势新变化,营造良好营商环境,切实依法维护好用人单位和劳动者权益,2019年11月26日,上海市、江苏省、浙江省、安徽省人力资源和社会保障厅(局)、**人民法院、劳动人事争议仲裁院负责劳动人事争议案件处理的同志,在江苏省常州市召开了长三角区域“三省一市”劳动人事争议疑难问题审理意见研讨会,江苏省13个地级市人力资源和社会保障局调解仲裁管理处、仲裁院负责同志列席会议。会议对当前长三角区域劳动人事争议案件审理中面临的疑难问题进行了广泛深入的研讨。会后,根据会议研讨情况,进行了整理,经充分征求意见,现对已达成共识的若干问题纪要如下,供工作中参考。  一、劳动者与用人单位就未休年休假工资报酬发生争议,请求权的时效以及起算点的认定。  支付劳动者未休年休假工资报酬系用人单位应当履行的法定补偿义务。劳动者要求用人单位支付未休年休假工资的请求,符合《*******劳动争议调解仲裁法》第二条规定的受案范围,劳动人事争议仲裁委员会应当予以受理。该请求权时效应按照《*******劳动争议调解仲裁法》第二十七条第一款之规定,从应休年休假年度次年的1月1日起计算;确因生产、工作需要,经劳动者同意,用人单位跨年度安排劳动者休年休假的,请求权时效顺延至下一年度的1月1日起计算;劳动关系已经解除或者终止的,从劳动关系解除或者终止之日起计算。  二、劳动者的用工管理涉及多家用人单位的,劳动关系主体的认定。  劳动关系主体的认定一般应当以劳动合同订立的主体为准;未订立劳动合同或者订立劳动合同的主体与实际履行的主体不一致的,应当根据当事人之间签订的协议或者劳动者的实际用工情况,从劳动者的日常管理、工作地点、工资发放、社会保险缴纳、借用关系等方面综合审查,确定劳动关系主体。  三、因不可归责于用人单位的原因,用人单位超过一个月未与劳动者订立书面劳动合同,劳动者主张用人单位支付二倍工资的处理。  订立劳动合同系用人单位和劳动者的法定义务,对于用人单位有证据证明其已主动履行订立劳动合同义务,但劳动者拒绝订立劳动合同或者劳动者利用主管人事等职权故意不订立劳动合同,以及因其他客观原因导致用人单位无法及时与劳动者订立劳动合同的,劳动者因此主张用人单位支付二倍工资的,不予支持。  四、符合订立无固定期限劳动合同条件,但双方实际订立的是固定期限劳动合同,对其效力的认定。  劳动者符合订立无固定期限劳动合同条件,但与用人单位订立了固定期限劳动合同,根据《*******劳动合同法》第十四条以及《*******劳动合同法实施条例》第十一条的规定,该劳动合同应为有效。但劳动者能够举证证明该合同订立过程中用人单位存在欺诈、胁迫、乘人之危情形的除外。  五、根据《*******劳动合同法》第十四条规定,视为用人单位与劳动者已订立无固定期限劳动合同,但用人单位未与劳动者订立书面无固定期限劳动合同.劳动者提出用人单位支付二倍工资诉求的处理。  视为订立无固定期限劳动合同的,可以认定用人单位与劳动者已经存在无固定期限劳动合同关系的法律后果。劳动者据此要求用人单位支付二倍工资的诉求,不予支持。  六、用人单位未与劳动者协商或者协商未达成一致意见,调整劳动者工作岗位的有效性认定。  除《*******劳动合同法》四十条第一项和第二项规定的用人单位可以单方调整劳动者工作岗位的法定情形外,用人单位可以按劳动合同约定或者规章制度规定对劳动者工作岗位进行调整。如劳动合同无约定或者规章制度未规定,但确属用人单位生产经营所必需,且对劳动者的劳动报酬以及其他劳动条件未作不利变更,劳动者有服从安排的义务,可以认定用人单位调整劳动者工作岗位有效。  七、在规章制度未明确规定或者制定存在程序瑕疵、劳动合同未明确约定的情形下,若劳动者存在明显过错,对用人单位行使解除劳动合同权的认定。  劳动者存在违反法律、行政法规规定或者必须遵守的劳动纪律等情形,严重影响到用人单位生产经营秩序或者管理秩序的,应当认可用人单位解除劳动合同的正当性。对劳动者仅以用人单位规章制度未明确规定或者制定存在程序瑕疵、劳动合同未明确约定为由,主张用人单位解除劳动合同违法的,不予支持。  八、用人单位在劳动合同中约定“全国范围”“长三角区域”等宽泛工作地点的,该约定效力的认定。  用人单位与劳动者在劳动合同中宽泛约定工作地点,但未对用人单位工作地点、经营模式、劳动者工作岗位特性等特别提示的,属于对工作地点约定不明。  对于从事全国范围的销售、长途运输、野外作业等工作地点无法固定的特殊工作,劳动合同将劳动者工作地点约定为“全国范围”“长三角区域”等宽泛工作地点的,可以认定有效。  劳动合同对工作地点没有约定、约定不明确或者劳动合同约定与实际履行地不一致的,应当以实际履行地为认定工作地点的主要依据。
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