Race Discrimination - Contract workers
The Claimant was employed by A to provide patient advocacy services at B’s mental hospital. He was barred by B from access to a ward, allegedly after an incident with a patient. A then suspended him. He claimed that both A and B were guilty of race discrimination. On a preliminary issue the Tribunal held that he was a contract worker of B, within S7 of RRA. On appeal held that the Tribunal had reached a factual finding open to them and had made no error in principle. There have, I think, been ve ...
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The Appellants’ solicitors sent their Responses to the Tribunal by post on the last day before time expired; they arrived one day late. The Tribunal refused a review; the decision focused only on the reason for the delay or absence thereof and made no attempt to consider prejudice, to follow Moroak or to apply the principles in Kwik Save Stores Ltd v Swain. Appeal allowed; time for responses extended to date after actual presentation.
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Disability Discrimination - Reasonable adjustments
Issue regarding the burden of proof in relation to offering suitable alternative employment. The burden of proof is on the employer to satisfy the tribunal that there was no alternative employment, either available or available in the reasonably acceptable future for this employee. The tribunal were entitled to reach the conclusion which they did, on the simple ground that the appellants had not discharged the burden of proof which lay on them, in the circumstances of this case of showing that t ...
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Practice and Procedure: ET1 forms: In Grant v In 2 Focus, the EAT held that a slightly shrunken claim form, shrunk by the faxing process, did not render it inadmissible as not being on ‘the prescribed form’ - leading to the employee missing the three month deadline for lodging the claim.
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The Respondent dismissed the Claimant for three reasons. On appeal, two of the most serious fell away but the reason for dismissal remained the same. At the Employment Tribunal it was held that the procedure was unfair, but was rescued by the Employment Rights Act 1996 s98A(2). On appeal it was held that the relevant managers had never turned their minds to whether they would have dismissed for the one offence alone, and could not invoke s98A(2) by mere assertion. Employment Tribunal reversed.
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Reason for dismissals – redundancy or trade union activities? The majority finding of the Employment Tribunal that it was trade union activities was neither inadequately reasoned nor perverse. Murray v Foyle Meats [2000] 1 AC 51 does not require the soundness of the business case for redundancies to be considered before the Employment Tribunal decides what the true reason for dismissal was.
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Practice and Procedure - Striking-out/dismissal
The effect of the Claimant’s deliberate decision to disobey a disclosure order was to prevent the Tribunal from having the best evidence on which to base their findings of fact and the Respondent to establish their factual case. The EAT found that this is one of those exceptional cases where dealing with the case fairly and justly merited the Tribunal making the strike-out order. No lesser sanction would maintain fairness between the parties. A fair hearing was not possible in the circumstances, ...
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Temporary music teacher’s claim for exclusion from pension scheme. Application of Preston cases and Jeffrey v Secretary of State for Education & ors [2006] ICR 1062. Claim time-barred. Obiter discussion of whether limitation period runs from end date of last of a series of short-term contracts or from a later date.
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Practice and Procedure - Case Management
Appeal against a decision of the Employment Tribunal to refuse to make a disclosure order against a third party. The central issue was whether the decision ought to have been taken by the Chairman alone or by the full tribunal and, if the latter, whether in fact the Chairman had consulted the lay members. The EAT found that the facts were unclear and they were not satisfied that the decision had been wrongly made. Even if it had, the EAT considered that the overriding objective entitled them to ...
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Agency Workers: In Craigie v Haringey, the EAT upheld a tribunal's decision that there was no 'necessity' to imply a contract of employment between agency workers and the end user.
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