By Daniel Gorry on 01/05/2007 00:00
Claimant’s application for a Review of ET decision made late, but time extended and a Review granted on the papers of the Tribunal’s earlier decision to strike out the claim for Claimant’s failure actively to pursue it. No hearing held, despite a clear dispute on the evidence between the parties and the Tribunal’s failure to consider the various matters in CPR3.9 in order to decide how to deal “justly” with the application. Appeal allowed.
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By Daniel Gorry on 01/05/2007 00:00
Appeal against certain findings of race and religious discrimination and disability discrimination upheld. Cross appeals against victimisation discrimination and breach of contract rejected. Employment Tribunal failed to apply established principles properly in determining whether there was direct discrimination. Case remitted to fresh Tribunal on the race and religious discrimination grounds only.
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By Daniel Gorry on 01/05/2007 00:00
Automatic unfair dismissal under s.98A(1) ERA. Order for reinstatement made. ET found no Polkey deduction after considering Burchell test. Substituted own view as to what would be a reasonable investigation. No adequate fact-finding or reasoning to explain finding of no contributory fault. Appeals allowed; remedy remitted.
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By Euan Dow on 30/04/2007 22:00
Practice and Procedure - 2002 Act and pre-action requirements
On 14 October 2004 the Claimant claimed constructive unfair dismissal arising out of four acts of the Respondent. No grievance pursuant to the 2004 Regulations had been presented. The Employment Tribunal allowed the case to proceed at a pre-hearing review under s95(1)(c) Employment Rights Act 1996 (ERA) in respect of only one of the four acts, i.e. the one which was the subject of a grievance presented before the regulations came into effect. On appeal it was held that it was not possible to sev ...
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By Euan Dow on 26/04/2007 23:00
Disability Discrimination – Disability
The appellant who was disabled was dismissed after a long absence from work. He made various claims under the Disability Discrimination Act 1995, all of which were rejected. He contended that the failure to make an assessment of a disabled employee was a failure to make a reasonable adjustment and that Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 was wrongly decided or that alternatively, it ought to be distinguished on the facts. The EAT followed Tarbuck and held that it could not be ...
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By Daniel Gorry on 26/04/2007 00:00
Practice and Procedure - Striking-out/dismissal
Appellant failed to put in ET3 in time and was debarred from defending. On review, the Chairman gave no reasons as to why the balance of prejudice and the interests of justice were “not served by granting the review.”Held: the decision was not Meek compliant. Following D & H Travel v Foster the purpose of the sanction was not punishment but to achieve the overriding objective of dealing with cases justly. In the absence of any indication of real prejudice to the Respondent and there being an arg ...
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By Euan Dow on 23/04/2007 22:00
Where a Claimant submits a grievance relating to a continuing discriminatory act, s32 Employment Act 2002, and Schedule 2 para 6 do not require him to serve a further grievance in respect of the same continuing act. The Employment Tribunal was also in error in failing to hold that the duty to make reasonable adjustments under the Disability Discrimination Act arose when he Claimant became permanently unfit for his existing work.
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By Daniel Gorry on 20/04/2007 00:00
The Appellant was dismissed by reason of redundancy. The consultation period was one week. Employment Tribunal held in the circumstances this was reasonable. Held: This was a conclusion the Employment Tribunal was entitled to reach. Employment Tribunal also awarded costs in respect of the Appellant’s husband’s unreasonable conduct which extended the length of the Employment Tribunal hearing. Held: no error of law. Employment Tribunal entitled to do so.
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By Euan Dow on 19/04/2007 23:00
Practice and Procedure - 2002 Act and pre-action requirements
Employment Tribunal decision that Respondent has failed to comply with Schedule 2 Part 1 of the Employment Act 2002 contrary to authorities of Alexander v Bridgen Enterprises, YMCA Training v Stewart and Silman v ICTS. The Employment Tribunal also took the wrong multiplicand for assessing future loss. The correct multiplicand was the sum the Claimant would have earned had he continued working. The Employment Tribunal also made an award of £500 in respect of loss of statutory rights when the ...
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By Daniel Gorry on 19/04/2007 00:00
Race discrimination – Reasons given by Tribunal for inferring discrimination at Igen stage 1 or rejecting the Respondent’s explanation at stage 2 held to be inadequate – Remitted to a different Tribunal.
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