Employment

Mrs M Adey-Jones v Mrs A R O'Dowd UKEAT/0098/08

Mon, 01 Sep 2008 14:22:00 GMT

Unfair Dismissal - Compensation

Where an employee suffered illness partly as a result of the employer’s conduct and partly for other reasons an Employment Tribunal must make careful findings and follow the guidance of cases such as Seafield Holdings Ltd (trading as Seafield Logistics v Drewett [2006] ICR 1413. It should also attempt to determine whether the illness was caused by breach of the implied duty of trust and confidence or by wrongful dismissal; see GAB Robins (UK) Limited v Triggs [2008] EWCA Civ 17 and GMB Trade Union v Brown [2007] UKEAT/0621/06.

Mr John Joseph v Orange Business Holdings UK Limited UKEAT/0382/07

Thu, 28 Aug 2008 14:17:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

Appeal on grounds that Tribunal had no evidence in front of it to make the findings that it did.

EAT held the Employment Tribunal did not err in upholding the employee’s automatically unfair dismissal claim, yet awarding him no compensation as dismissal was inevitable. Nor did it err in dismissing his ordinary unfair dismissal claim or in rejecting his race discrimination claim.

R A Dixon v Chief Constable of Strathclyde Police S/120872/2006 F596/61

Thu, 28 Aug 2008 07:51:00 GMT

A colour-blind graduate whose application to join the police was turned down because he suffers from colour vision abnormality has won the right to claim sex discrimination at an employment tribunal.

Robin Dixon (26) has already lost a disability discrimination claim against Strathclyde Police because of his colour blindness.

But now, following a preliminary hearing, he has won the right to fight his case again, this time on the grounds of sex discrimination.

The Glasgow tribunal ruled that although his claim was timebarred, the matter should be allowed to proceed to a full hearing on the basis of justice and equity.

Mr Dixon will now join another applicant, Graeme McCullie (29), from Kilmarnock, who was also turned down by Strathclyde Police because he too is colour-blind. Both will now have their sex discrimination claims heard by the Glasgow tribunal at a later date.

Mr Dixon, from East Kilbride, only discovered after losing his disability discrimination claim that more males than females were affected by colour blindness and that he might be able to argue his case on the grounds of indirect sex discrimination.

But Strathclyde Police objected as he had failed to lodge his complaint within three months of the alleged discriminatory act. His recruitment application was rejected in November 2005 but he did not lodge his sex discrimination claim with the Glasgow tribunal office until October 2006.

Mr Dixon, from East Kilbride, told last month's hearing to determine whether his case should be allowed to proceed, that it should be permitted to go ahead in the interests of justice, as he had been unaware prior to October 2006 that he could claim sex discrimination.

Mr Dixon, from East Kilbride, said it was his life-long ambition to join the police. He is now working as a store manager in Dublin.

A previous tribunal hearing Mr Dixon's disability discrimination claim heard evidence that Chief Inspector Douglas Campbell told him he would have made a good police constable but his application would not be progressed, explaining there were concerns about not only his own health and safety but also that of other officers and the general public. He explained there were concerns as to the reliability and credibility of evidence, which would rely on Mr Dixon's ability to distinguish colours being called into question.

Following the preliminary hearing, employment judge Michael MacMillan concluded ''The judgment of the tribunal is that the application is subject to time bar in terms of section 76(1) of the Sex Discrimination Act 1976. Having heard parties' submissions on the matter, the tribunal has determined to exercise the discretion available to it under Section 76(5), and allow the matter to proceed to a full hearing, on the basis of justice and equity.''

The case is expected to be heard towards the end of the year.

D Mirren v Spotless Commercial Cleaning S/1000163/2008 F605/061

Thu, 28 Aug 2008 06:40:00 GMT

A 16-year-old boy who didn’t show up for a job interview because he couldn’t find his way to the company’s office, has had his age discrimination claim rejected by an Employment Tribunal in Glasgow.

In their written judgement, the Tribunal ruled that Darren Mirren had not been offered a job with Spotless Commercial Cleaning because he failed to turn up for an interview, not because of his age.

At the Hearing earlier this month (August), it was learned that the teenager’s mother already worked for the company at Braehead shopping centre and when a vacancy came up there for another cleaner, she suggested her son might be interested.

The Tribunal heard that, in fact, Darren would not have been offered the job at Braehead because, being an unsupervised site where a floor buffer is used, Spotless would not have allowed an under 18 employee to work there.

Acting on advise from the company which employs approximately 40 people under the age of 18, the teenager filled in an application form and was invited for an interview and a risk assessment.

It was said at the Hearing that, when the 16-year-old failed to turn up on the appointed day, he was telephoned at home where he explained that he didn’t know how to find his way from Pollok to the company’s Shettleston office by public transport and a taxi would have cost £40.

The Tribunal learned that Darren was advised how to get to the office by bus and train and was offered the chance of another interview which he failed to take up.

Representing his son, Mr. Mirren Senior claimed at the Hearing that the company had not offered the teenager a job because of his age and questioned why, if he was old enough to go to war, he wasn’t old enough to use a floor buffer.

But Tribunal Judge Ms Lucy Crone rejected the age discrimination claim and accepted the company’s evidence that the 16-year-old would have been eligible for work on a supervised site if he had attended an interview.

J McGee v Wescot Credit Services Ltd and others S/133179/2007 F603/090

Thu, 28 Aug 2008 04:58:00 GMT

A worker with a debt collection agency who claimed he was harassed because of his age has been awarded almost £400 compensation for injury to his feelings by an employment tribunal.

Joe McGee (62), who was a debt recovery operator with Wescot Credit Services Ltd, complained of age discrimination under the Employment Equality (Age) Regulations after his line manager William Fox noted ''Ambition is not a motivation for Joe (due to age)'' following a performance review. It is one of the first cases where a victim of harassment on grounds of age has won a tribunal claim.

Mr McGee felt the comments were ''ridiculous'' and responded in the feedback section of the review document ''In the seven years I have been employed at Wescot I assumed ageism was not acceptable in this company and now I have been proven incorrect. I am disappointed with this attitude of any manager in a position of trust.''

He raised a grievance against Mr Fox and attended a meeting with head of collections Alasdair Skeoch, Mr Fox's line manager on 21 September, 10 days after the review meeting. Mr McGee told Mr Skeoch how Mr Fox's comments had upset him. He explained Mr Fox had asked him ''What age are you now?'' and ''Tell me how I can justify your wage?'' Mr McGee told Mr Keogh that Mr Fox had often made comments to him about his age and the level of salary he was paid. He claimed Mr Fox ''often had a pop to him about his age and his wage''.

Mr Skeoch asked if he had ever asked Mr Fox to stop mentioning his age. Mr McGee said he had not done so but he was now concerned that comments were being included in his monthly review. He also told how, at a meeting some 18 months earlier attended by about 30 employees, during a discussion about opportunities within the organisation, Mr Fox said ''This doesn't apply to you Joe, you'll just be waiting for death''.

At a subsequent meeting he was advised his grievance was not upheld. Mr Skeoch said it was Mr Fox's view Mr McGee was not interested in advancement due to his age. Mr Skeoch concluded the wording used in the review form had been incorrect but there had been no intention by Mr Fox to discriminate against him based on his age. Mr Skeoch advised he would take steps to ensure the document was rewritten to accurately reflect each party's viewpoint.

In relation to his salary, Mr Skeoch advised Mr McGee his salary would not be reduced, it was higher as a result of his length of service and a reward for his past performance and loyalty to the company. Mr Skeoch would guarantee that the company would not seek to reduce his wages now or in the future.

Mr Skeoch concluded he had not been discriminated against in relation to his age and there was no disadvantage to him either within the department or the organisation.

Mr Fox denied there was any light-hearted banter about Mr McGee's age or that he ever made the comment that he was ''waiting for death.''

Mr McGee felt that by deciding not to uphold his grievance, the company was accepting an ageist approach and decided not to appeal.

Mr McGee, who subsequently raised a tribunal action claiming age discrimination, said he considered the comment that ''ambition is not a motivation for Joe (due to his age)'' to be ''bang out of order'' and felt upset to read it.

Mr Fox told the tribunal that Mr McGee made reference to his age in response to questions bout ambition and motivation and he had noted this as what Mr McGee told him.

The Glasgow employment tribunal concluded that on balance the remark was made by Mr Fox to Mr McGee and that this was against a background of Mr McGee having had comment passed about his age on at least one occasion.

Tribunal judge Jane Garvie added ''The Tribunal concluded that the claimant was subjected to harassment in that his age was raised by Mr Fox at the meeting on 11 September 2007. It was not clear to the Tribunal why the issue of the claimant's age had any relevance to the review of the claimant's performance which was the sole purpose of the review meeting.''

The tribunal added ''He was understandably very offended by use of the phrase, ''Due to age'' appearing in the review document'' but rejected his submission he should be awarded a year's salary in compensation.

Mr McGee from Glasgow, who now works as a trace allocations officer for Wescot, was awarded £750 compensation for injury to feelings, reduced by 50 per cent because he failed to exercise his right of appeal. Wescot Credit Services Ltd, of 64 Oswald Street, Glasgow, and Mr Fox, were jointly and severally ordered to pay him £375 compensation plus interest of £22.50, a total of £397.50.

Tradition Securities and Futures SA v X and another UKEAT/0202/08

Wed, 27 Aug 2008 16:17:00 GMT

The Employment Appeal Tribunal has found that where an employee of French nationality worked for a French registered company in Paris for 3 years followed by a further 2 years in London and alleged a course of sex discrimination extending across the whole 5 year period, the Employment Tribunal in the UK ought not to have heard the aspects of the claim relating to the French employment.

The Sex Discrimination Act 1975 provides that it is unlawful for an employer to discriminate against a woman employed by them at an establishment in Great Britain. The Act further specifies that employment is to be regarded as being at an establishment in Great Britain unless the employee does work wholly outside Great Britain.

A common sense reading of the legislation would suggest that the employer could only be liable before an Employment Tribunal in the UK in respect of the period of employment in London.

The complicating factor in this case was the Claimant’s assertions that the discriminatory acts were a series of incidents that started in Paris and continued in London. Her argument was that the legislation ought to enable all of these discriminatory acts to be considered as a continuous series and that the French acts ought therefore to be capable of being decided upon in the UK Employment Tribunal.

The EAT decided that the concept of a continuing act extending over a period of time could not enable the incidents in France to be considered before the Employment Tribunal in the UK and so the Tribunal had no jurisdiction to decide upon the events in France.

Mr K Koyunco v (1) Ms s Primmer (2) Mayflower Kebabs Limited (3) Mr M Aldogan (4) Laxtone Limited UKEAT/0102/08

Wed, 27 Aug 2008 14:20:00 GMT

Practice and Procedure - Appearance/Response

A company director who signed a form ET3 on behalf of his company could not complain that he personally had been unaware of the proceedings.

Mr P Maley v Royal Mail Group Limited UKEAT/0232/08

Wed, 27 Aug 2008 14:19:00 GMT

Statutory Discipline and Grievance Procedures - Whether applicable

The statutory grievance procedures are inapplicable where the dispute results in the employee’s dismissal.

Mr S Jones v Money Export Limited UKEAT/0231/08

Fri, 22 Aug 2008 14:18:00 GMT

Practice and Procedure - Review

A case management order was made precluding the respondent from relying upon documents which it had not previously disclosed to the claimant. At the Hearing which the Claimant did not attend, he having emigrated, documents were relied on by the respondent which had not been disclosed to the claimant. This was a material irregularity. From the limited nature of the appeal which was against the refusal to review, application for review succeeded and the matter would be directed to the same employment judge for him to hear the review in the light of all new material the claimant wished to have put before him.

(1) Ms S Potter & Others (2) Ms L Casson & Others v North Cumbria Acute Hospitals NHS Trust UKEAT/0004/08 & UKEAT/0005/08

Thu, 21 Aug 2008 14:23:00 GMT

Equal Pay Act - Case management

Multiple equal pay claims - Lead cases - Problem caused by possibility that jobs done by lead Claimants or their comparators might have materially changed over the claim period - Held that it was a proper exercise of the Chairman's discretion initially to limit the experts' consideration to the facts as they stood at the date that the claims were presented and to defer consideration of the issues that might arise if it were subsequently alleged that the facts had been materially different at some earlier date within the claim period - General observations about the proper analysis of an equal pay claim extending over a period and about how cases involving alleged changes during that period may be case-managed (including whether it is necessary for a Tribunal to obtain an expert's report in respect of the entire period, even where it is alleged that changes have occurred).

Miss R Muchesa v Central & Cecil Housing Care Support UKEAT/0443/07

Thu, 21 Aug 2008 13:16:00 GMT

Unfair Dismissal - Automatically unfair reasons

The employee claimed that she had been dismissed for making protected disclosures and that her dismissal was unfair under s98A(1) and 98(4) of the Employment Rights Act 1996 (ERA). She failed on protected disclosure; the dismissal was unfair under s98A(1) but if a proper procedure had been followed, she would have been dismissed fairly for misconduct; she was entitled to a basic award.

On appeal held:-
1. The Employment Tribunal’s conclusion that the employee did not reasonably believe in the truth of the information disclosed was not reached in error of law, it had correctly applied – Darnton and Babula.

2. There was no perversity.

3. Although the Employment Tribunal had originally failed to address disclosures to the employers as opposed to disclosures to outside recipients (a) the answers given by the Employment Tribunal to questions under the Burns/Barke procedure were sufficient (b) although one of the members went too far, in error of law, he was only 1 of 3 and his comments had no higher status than that of a dissent.

Observations on the use of the expression “we are driven to the conclusion”; it states no more than the fact finder’s view of the strength of the evidence.

(1) Mr I Ramsey (2) Mr K McCard (3) Mr H Griffiths v (1) Bowercross Construction Limited (2) The Construction Workers Guild Limited (3) GMB UKEAT/0534/07 & UKEAT/0535/07

Tue, 19 Aug 2008 14:21:00 GMT

Practice and Procedure - Costs

Costs – whether a party can recover by way of costs counsel’s fees (yes) and those of a non legally qualified adviser, as defined in s.71 C&LSA 1990 (no). Employment Tribunal Rules 38, 40-42 considered.

(1) Mr A Darby (2) Ms B Still v The Law Society of England and Wales UKEAT/0447/07

Thu, 14 Aug 2008 12:32:00 GMT

Unfair Dismissal - Dismissal

Issue as to whether employees were “dismissed”. The employer resolved to remove the employees’ contractual entitlement to company-cars. Attempts to achieve consensual variation of the contracts to that effect were followed by letters referring to termination of employment and re-engagement. The employees then signed new terms without the previous company-car provisions.
On the issue of whether there had been any “dismissals”, an Employment Tribunal found that the new terms had been achieved by agreement to vary rather than termination.
On appeal, the Employment Appeal Tribunal was satisfied that the only proper construction of the letters was that the employees had been dismissed by notice in writing and then re-engaged on less favourable terms.

Mr G Dalitis t/a Shanklin Motor Co. v Mr A K Plissi UKEAT/0127/08

Thu, 14 Aug 2008 12:31:00 GMT

Unfair Dismissal - Dismissal/ambiguous resignation

After an argument in the workplace between the employer and the employee’s wife, the employer and employee had a minor fight, after which there were spoken what were said to be words of dismissal. According to the former, the latter said, “Get out, leave and don’t come back”. According to the latter he said, “Get out, this argument has got nothing to do with you”. The ET did not make a finding as to what was said but proceeded on the basis of “get out”. They found those words to be ambiguous and, after looking at surrounding circumstances such as the employer not thereafter contacting the employee and asking for the return of work fuel cards, held that there had been a dismissal. Held:
(1) The ET did not find that only “get out” had been said. It was common ground that on either version there was no ambiguity. It was therefore the ET’s duty to make a finding as to which version was correct. The results would inevitably follow.
(2) In any event the ET had erred in its consideration of the circumstances. The factors relied upon were equally consistent with the employer’s view that the employee, by not returning to work, had resigned.
(3) Remit to new Tribunal.

(1) Mr I Ramsey (2) Mr K McCard (3) Mr H Griffiths v (1) Bowercross Construction Ltd (2) The Construction Workers Guild Ltd (3) GMB UKEAT/0534/07 & UKEAT/0535/07

Thu, 14 Aug 2008 12:30:00 GMT

Practice and Procedure - Costs

Whether claim misconceived and if so when that ought to have been appreciated by paying party (McPherson v BNP Paribas).

Mr R Radecki v Kirklees Metropolitan Borough Council UKEAT/0114/08

Mon, 11 Aug 2008 15:12:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

Claimant was suspended from duty as a teacher and entered into negotiations with Respondent for a compromise agreement whereby he would be compensated for termination of his employment. It was envisaged that under the agreement the parties would agree that his employment terminated on 31 October 2006. This was included in a preamble to a draft agreement that was never in fact agreed and was marked “without prejudice” and “subject to contract”. In the expectation that the agreement would be executed, the Respondent removed the Claimant, to his knowledge, from the payroll effective 31 October 2006. The Employment Judge held that there was a freestanding agreement that the Claimant’s employment should be terminated as at 31 October 2006 and the three month time limit began to run for the purpose of section 11 of the Employment Rights Act from that date; the Claimant, asserted the EDT was later and that if his EDT was correct his application was in time. Appeal allowed on the basis that it was impossible to construct a freestanding agreement and the Claimant’s EDT accepted. The Respondent sought to argue that the case was on all fours with Robert Cort & Son Ltd v Chapman [1981] IRLR 437 and that the decision to take the Claimant off the payroll amounted to a termination of his employment with immediate effect. Held that Cort v Chapman required there to be something equivalent to an unequivocal dismissal. On the facts of the instant case the decision to remove from the payroll appeared to be made in the expectation that the draft agreement would be executed and to give effect to it rather than with a view to termination of the employment in any event.

(1) British Association for Service to the Elderly (2) Mrs B Duckworth UKEAT/0261/07

Mon, 11 Aug 2008 15:06:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

The employers dismissed the employee because they were in financial difficulties and she refused to accept a lesser set of terms and conditions. The Employment Tribunal found that the reason for dismissal was some other substantial reason but the dismissal was substantively unfair and automatically unfair. The employer’s appeal failed; the Employment Tribunal had taken the financial difficulties into account; their complaints as to the employee’s conduct were not live before the Employment Tribunal. In any event, there was no appeal against the finding of automatically unfair dismissal.

Mrs E Ford v Libra Fair Trades Ltd UKEAT/0077/08

Mon, 11 Aug 2008 14:55:00 GMT

Unlawful Deduction from Wages

The employee carried out tasks for her employer and for the employer’s principal shareholder. She was dismissed for misconduct, much of which she believed arose out of tasks which were not part of her contract of employment. The Employment Appeal Tribunal found that she genuinely so believed but that her employer genuinely believed that those tasks were contractual and reasonably so believed. They made no finding as to whether they were contractual or not. They found that conduct was the reason for dismissal and that dismissal for that reason was fair. On appeal, it was held that the Employment Appeal Tribunal were, so far as unfair dismissal was concerned, not obliged to make such a finding; their approach was correct. But they were bound to make such a finding before deciding that summary dismissal was not a breach of contract; and the employee was therefore not entitled to damages for breach of contract for a two-week notice period.

Mr K Way v Powercraft (Retail) Ltd UKEAT/0217/08 & UKEAT/0221/08

Mon, 11 Aug 2008 14:54:00 GMT

Practice and Procedure - Case Management

An order striking out a claim or response cannot be made at a case management discussion.

Cumbria Probation Board v Mr S Collingwood UKEAT/0079/08

Fri, 08 Aug 2008 15:08:00 GMT

Disability Discrimination - Disability

The date of disability is a fact found by an Employment Tribunal on the basis of medical and other evidence. When a consultant gave a range of dates for the onset of a condition, the Employment Tribunal did not err in taking the outside bracket in context with the Claimant’s own account. The Employment Tribunal’s findings of discrimination taking the form of failure to adjust and harassment were upheld, the EAT rejecting appeals on preliminary points on the statutory grievance procedure and the meaning of disability.

Dundee City Council v Miss Margaret Gennelli Malcolm UKEATS/0055/07

Fri, 08 Aug 2008 14:51:00 GMT

Sex Discrimination - Vicarious liability

Sexual harassment claim by an employee of an education authority. Circumstances in which tribunal had misdirected itself as to its own prior judgment and erred in continuing the claim straight to a remedies hearing when an issue of time bar, and, depending on the resolution of that issue, an issue regarding the appellants’ defence under s.41(3) of the Sex Discrimination Act 1975 both remained unresolved. Appeal upheld and case remitted to a freshly constituted tribunal; tribunal had shown clear and express sympathy for the claimant’s case and had been, evidently, striving to make a finding in her favour. It was not appropriate in these circumstances to remit to the same tribunal.

William Hill Organisations Ltd v (1) Miss T M Steele (2) Miss W McNeill UKEAT/0154/08

Wed, 06 Aug 2008 15:04:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Betting shop assistants dismissed for fraud - Dismissal held to be unfair on the basis that there were defects in the investigation and, more particularly, that the employers' belief in the employees' guilt was unreasonable on the basis of the available evidence - Employer appealed on the basis that the Tribunal had failed to apply British Home Stores v. Burchell - Held that the Tribunal had directed itself properly and that it was entitled to reach the conclusion which it did

Sodexo Ltd v (1) Ms E A Gutridge & Others (2) North Tees and Hartlepool NHS Foundation Trust UKEAT/0024/08

Thu, 31 Jul 2008 15:13:00 GMT

Equal Pay Act

The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They had been transferred pursuant to a TUPE transfer and claimed their equal pay rights some five years later. Their claims relied upon establishing equal pay with comparators who had been employed by the transferor but had not been transferred to the transferee.

The employers argued that the claims were out of time and should have been brought within six months of the transfer as required by section 2ZA of the Equal Pay Act. They relied upon the decision of the House of Lords in Powerhouse Retail Limited v Burroughs and others [2006] IRLR 381 as interpreted in Unison v Allen [2007] IRLR 975. The Employment Tribunal held that these authorities applied only where the breach in issue was that of the transferor. They did not apply where, as in this case, the allegation was that the transferee was personally liable for breach of the transferred terms.

The EAT allowed the employer’s appeal but only in so far as the claims related to the period when the transferor was in breach of the equality clause. They held that Powerhouse would apply so as to render out of time any claims against the transferor (even although liability for those breaches had transferred to the transferee). However, the EAT dismissed the appeal with respect to the claims against the transferee for his failure personally to respect the transferred terms; that claim could be brought at any time within six months from the end of the relevant employment with the transferee.

Commander Dawn Kennedy OBE v Ministry of Defence UKEAT/0614/07

Thu, 31 Jul 2008 14:52:00 GMT

Sex Discrimination - Direct

The Employment Tribunal dismissed a claim for direct sex discrimination brought by a woman in the Royal Navy Reserve who complained that she had been rejected for the post of Captain and Medical Director by reason of her sex. The claimant appealed, contending that the Tribunal ought to have drawn inferences from the primary facts which shifted the burden of proof in accordance with the well known criteria of Igen v Wong [2005] ICR 931; and that the circumstances disclosed clear discrimination.

The EAT dismissed the appeal. Although it would have been desirable for the Tribunal to have dealt more fully with some of the arguments of the claimant, this was not a case like Anya v University of Oxford [2001] IRLR 377, where material primary facts had not been found or incidents of alleged discrimination not dealt with. The EAT was satisfied that even had the arguments been addressed specifically by the Tribunal the result would have been the same. The Employment Tribunal’s finding that there was no discrimination did not disclose any material error of law so as to undermine its conclusions.

Sybersolve Solutions Ltd v Mr S Eleode UKEATPA/0179/08 & UKEATPA/0013/08

Wed, 30 Jul 2008 15:11:00 GMT

Practice and Procedure - Time for appealing

The law and practice on out of time appeals described in Muschett EAT were accepted to be correct. The application in Consignia v Sealy CA of the two-day postal rule in CPR6.7 to the Employment Tribunal’s “not reasonably practicable” jurisdiction does not be extend to the 42-day time limit for a Notice of Appeal in the EAT. CPR6.7 is an irrebuttable deeming provision. Different considerations apply to first instance and appellate jurisdictions where EAT R35(3) applies. After hearing live evidence, a Notice of Appeal posted on day 40, arriving on day 43, and a Notice of Appeal arriving at the Employment Tribunal on day 39 and the EAT on day 54, were out of time and discretion would not be exercised.

Bost Logistics Ltd v (1) Mr J Gumbley (2) Mr A Rowberry (3) Mr M Smith (4) Exel Europe Ltd UKEATPA/0013/08 & UKEATPA/0179/08

Wed, 30 Jul 2008 15:10:00 GMT

Practice and Procedure - Time for appealing

The law and practice on out of time appeals described in Muschett EAT were accepted to be correct. The application in Consignia v Sealy CA of the two-day postal rule in CPR6.7 to the Employment Tribunal’s “not reasonably practicable” jurisdiction does not extend to the 42-day time limit for a Notice of Appeal in the EAT. CPR6.7 is an irrebuttable deeming provision. Different considerations apply to first instance and appellate jurisdictions where EAT R35(3) applies. After hearing live evidence, a Notice of Appeal posted on day 40, arriving on day 43, and a Notice of Appeal arriving at the Employment Tribunal on day 39 and the EAT on day 54, were out of time and discretion would not be exercised.

London United Busways Limited v Mr B Salim UKEAT/0514/07

Wed, 30 Jul 2008 15:07:00 GMT

Unfair Dismissal - Reasonableness of dismissal

The majority judgment of the Employment Tribunal that the Respondent dismissed the Claimant unfairly in breach of the EADR 2004, Steps 1 and 2(ii)(b), and if necessary, Employment Rights Act 1996 s98(4), was set aside. It was made without explanation as to why it rejected the unchallenged evidence of the Claimant and his TU rep that he knew he was at risk of dismissal and agreed he had adequate time to prepare, in the 48 hours between the suspension and the disciplinary meeting.

Wilf Gilbert (Staffs) Ltd v Mr P Bunn UKEAT/0547/07

Wed, 30 Jul 2008 14:57:00 GMT

Unlawful Deduction from Wages

The employee was suspended without pay when dismissed for refusing to work on Mondays when he was contractually obliged to do so. Held that the Employment Tribunal had, on the hypothesis that there was a contractual right to suspend without pay, correctly held that the statutory disciplinary and dismissal procedure applied, at least as to Step 1, and had not been complied with; and that on the terms of the relevant document, in the circumstances the employer could not lawfully exercise that right. Therefore the employee was entitled to his wages, less any deduction in respect of Mondays, pursuant to Miles v Wakefield, the extent of which was remitted to the Employment Tribunal to ascertain.

The Employment Tribunal erred in failing to consider what uplift on the sum unlawfully deducted should be made pursuant to Section 31 of the Employment Act 2002.

Network Rail Infrastructure Ltd v Mr J F Glencross UKEAT/0094/08

Tue, 29 Jul 2008 15:11:00 GMT

Victimisation Discrimination - Protected disclosure

Dismissal for making a protected disclosure Employment Tribunal decision upheld.

Suffering a detriment for the same reason. Employment Tribunal decision inadequate and committed to a different decision for determination.

Makro Self Service Wholesalers Ltd v Mr C Rees UKEAT/0559/07

Tue, 29 Jul 2008 14:56:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Conduct dismissal concerning the Burchell test. Reasonableness of grounds for belief in misconduct. Misapplication of (neutral) burden of proof under s98(4) ERA.

Makro Self Service Wholesalers Limited v Mr C Rees UKEAT/0559/07

Thu, 24 Jul 2008 12:58:00 GMT

Unfair Dismissal - Reasonableness of dismissal

This is an appeal regarding a conduct dismissal and the Burchell test. Specifically, the reasonableness of the grounds for the employer’s belief in the employee’s misconduct. Held that there was a misapplication of (neutral) burden of proof under s98(4) ERA. Appeal allowed and case remitted for rehearing by fresh Employment Tribunal.

Mr B Afoloyan v (1) MRCS Limited (2) Mr P Rhys-Taylor UKEAT/0553/07

Wed, 23 Jul 2008 13:02:00 GMT

Unfair Dismissal - Contributory fault

Unfair dismissal. Employer appeal body prejudiced the appeal. Could ET properly find that, had it not done so, a fair dismissal would still have occurred? Would the outcome have been the same if other procedural defects had not occurred? Was a nil award/100 per cent contribution a permissible finding? Appeal upheld and case remitted to a new tribunal.

Mr O Olasehinde v Panther Securities Plc UKEAT/0554/07

Wed, 23 Jul 2008 13:00:00 GMT

Race Discrimination - Detriment

Appellant wrongly and unreasonably accused by employers of sexual harassment. Employers accept his denial but instruct him not to seek to discuss the charges with the alleged victim. Appellant subsequently disobeys that instruction and is summarily dismissed.
Tribunal holds:
(1) Appellant not entitled to a claim that dismissal was discriminatory because no such claim raised until closing submissions.
(2) Original accusations constituted racial discrimination within s.1(1)(a) of Race Relations Act 1976 but not unlawful because they did not constitute a detriment for purposes of s.4(2)(c).
(3) Summary dismissal for disobedience of instruction lawful.
Appeal dismissed on (1) and (3) but allowed on (2) - Making of false and unreasonable disciplinary accusations capable of constituting a detriment even though no sanctions were imposed: De Souza v Automobile Association [1986] ICR 514 considered.

The British Library & Others v (1) Ms K Kaur (2) Mr J Cannon-Dusauzy EAT/0177/08

Wed, 23 Jul 2008 12:59:00 GMT

Unlawful Deduction from Wages - Ready, Willing and Able to Work

Claimants off work pending outcome of grievance process. Judged unfit to return until process completed. Sick pay continued despite Claimants refusing to lodge sick notes in breach of Respondent’s policy. Held by ET: entitled to full pay during relevant period. Decision was plainly wrong; Claimants were not ready willing and able to work. Appeal by Respondent allowed.

Miss K MacCulloch v Imperial Chemical Industries Plc UKEAT/0119/08

Wed, 23 Jul 2008 12:57:00 GMT

Age Discrimination

The claimant contended that she suffered both direct and indirect discrimination on grounds of age because of the way in which the employer’s redundancy scheme was structured. Redundancy payments were dependent on age and length of service but in a relatively complex way. She claimed to have been significantly disadvantaged by comparison with certain older workers, and also by those with longer service. It was conceded that there was prima facie direct discrimination.

The Tribunal found that the discrimination was justified. The claimant appealed and the EAT upheld the appeal on the grounds that whilst the Tribunal had identified certain legitimate aims which the scheme was designed to achieve, there had been no proper attempt to determine whether the means adopted were proportionate to those aims, having regard to the significant detriment suffered by the claimant.

On an entirely separate point, an appeal was allowed with respect to a small point concerning the assessment of compensation for an automatically unfair dismissal.

Mr S Williams v Cheshire Fire & Rescue UKEAT/0621/07

Tue, 22 Jul 2008 13:03:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Fireman dismissed following unacceptable level of absences, all supported by medical certificates. ET held dismissal for “conduct” and not unfair.

Dr S Varma v North Cheshire Hospital NHS Trust UKEAT/0103/08 & UKEAT/0104/08

Tue, 22 Jul 2008 13:01:00 GMT

Unfair Dismissal

Fundamental breach of employment contract alleged to entitle the Appellant, a trainee doctor, to repudiate his contract with the NHS Trust. Tribunal is alleged to have failed to take into account allegations of bad faith made against the employer in its determination to dismiss the Appellant by any means and its choice of the wrong disciplinary procedure. Appeal dismissed. The Tribunal considered all the matters properly and the appeal had no merit.

Ministry of Defence v Mr B A Hay UKEAT/0571/07

Mon, 21 Jul 2008 13:03:00 GMT

Disability Discrimination - Disability

The issue for the Employment Tribunal was whether the claimant had suffered from an impairment which had a substantial adverse effect on his day to day activities for over 12 months. He had answered a question by the respondent (pre-hearing) as to what precisely his disability was by saying that he suffered from “TB”. Expert medical evidence was that impairments attributable to tuberculosis alone would have lasted for less than 12 months. Despite this, it was held that an employment tribunal was entitled to hold that he was disabled by reason of a constellation of symptoms not medically attributed to TB, which lasted over a year. An argument based on Chapman v Simon that it was outwith its jurisdiction or procedurally unfair to the respondent for the Tribunal to determine this, because in the light of the claimant’s answer to the respondent’s question such a case had not been advanced before it, was rejected.

Ministry of Defence v Mr B A Hay UKEAT/0571/07

Mon, 21 Jul 2008 12:19:00 GMT

Disability Discrimination - Disability

Mrs B P Beck v (1) London Borough of Camden (2) Supporta Care Limited UKEAT/0121/08

Fri, 18 Jul 2008 12:10:00 GMT

Unfair Dismissal - Exclusions including worker/jurisdiction

Triangular relationship. ET finding that worker was employed by neither agency nor end-user. Appeal against end-user finding dismissed. James v Greenwich Council (EAT and CA) applied.

Mr K MacLennan v Gypsy Traveller Education and Information Project S/13272/07 f599/132

Wed, 16 Jul 2008 19:25:00 GMT

A ruling that Scottish gypsy travellers are not a separate ethnic group under the Race Relations Act is to be reconsidered by an employment tribunal.

An Aberdeen tribunal ruled earlier this year that a complaint of victimisation was not allowed as anti-discrimination laws to prevent racial bias did not extend to Scottish gypsy travellers as they were not a separate ethnic group.

Kenneth MacLennan had complained of racial discrimination, alleging he was victimised under the Race Relations Act by being dismissed for ''taking a stance on behalf of gypsy travellers''.

Mr MacLennan was employed as strategic co-ordinator with the Gypsy Traveller Education and Information Project in Aberdeen until his dismissal in July last year.

He raised an employment tribunal action complaining of unfair dismissal and victimisation under the Race Relations Act. He advised the tribunal ''I believe..that I have been victimised for taking a stance in relation to Scottish Gypsies Travellers.''

Mr MacLennan said he suspected the reason for his dismissal could be the stance he took over the closure of Garlogie lay-by to Scottish travellers and a child protection case involving a Scottish traveller. He said he could refute accusations that he had failed to ''network'' with other agencies. He further claimed certain public authorities had been non-compliant with current race relations legislation and believed they had been discriminating against gypsy travellers.

The Gypsy Traveller Education and Information Project argued that Mr MacLennan could not claim under the Race Relations Act as Scottish gypsy travellers were not a protected group. Scottish gypsy travellers were not of Romany descent and were therefore not an ethnic group and could not enjoy the protection of the Race Relations Act, relying on Mandla (Sewa Singh) & Another v Dowell Lee & Others [1983} ICR 385 and Commission for Racial Equality v Dutton [1989] QB 783, that the word ‘’traveller’’ is not synonymous with the word ‘’gipsy’’.

Mr MacLennan responded ''All public bodies have accepted Scottish Gypsy Travellers as an ethnic group.'' He further pointed out that the aims and objectives of the Gypsy Traveller Education and Information Project were to have Scottish gypsy travellers recognised as an ethnic group.

Employment judge Nicol Hosie had initially rejected Mr MacLennan's complaint, holding that the claim of discrimination by way of victimisation in terms of Section 2(1)(d) of the Race Relations Act 1976 had no reasonable prospect of success and it was struck out in terms of Rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

But he revoked that decision and the matter will now be heard with evidence being led before a full tribunal.

In his previous judgment, Tribunal judge Nicol Hosie said ‘’While there may be a body of opinion, that Scottish Gypsy Travellers, should be treated as an ethnic group and should enjoy the protection of the 1976 Act, there is no legislation, as yet, which affords them such protections. Although under the 1976 Act, (as amended in 2000) English Romany Gypsies and Irish Travellers are protected as ethnic groups Scottish Gypsy Travellers are not protected in the same way.’’

Referring to Dutton, he continued ‘’In short, the Court of Appeal made it clear that groups of travellers who did not share the common history of the Romany people, such as Scottish Gypsy Travellers, would not be an ethnic group.’’

However, as a result of the revocation, Mr MacLennan will therefore be able to lead evidence on whether his victimisation claim should be allowed to proceed or be struck out as it has no reasonable prospect of success.

Ms R Rodger v North Ayrshire Council and six others S/104014/05 F582/003

Wed, 16 Jul 2008 18:57:00 GMT

A council debt adviser who claimed she was bullied, harassed and victimised by council officials and forced out of her job as a result has been ordered to pay £6,000 toward the authority's expenses in defending the action under Rule 40 Schedule 1 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004..

Rona Rodger lost her sex discrimination, victimisation and constructive and unfair dismissal claims against North Ayrshire Council at an employment tribunal earlier this year. She had raised her action against the council and six council officials, which cost the authority over £100,000 to defend at a 22-day employment tribunal hearing.

Ms Rodger resigned from her job as debt adviser in the social work department in March 2005, prior to a disciplinary hearing to deal with accusations of failing to follow proper procedures, inadequate recording of information and failing to obtain a properly authorised mandate in respect of a client. In her letter of resignation she claimed the investigation report was distorted, lacked balance and that many of the incidents of alleged misconduct were down to poor management. She claimed she was bulled and intimidated by line manager David Hornell and it was hard for her to work with him. Her letter stated ''His obvious lack of knowledge and experience of debt management left him feeling threatened by the fact that I have greater knowledge and experience in this field. He was simply unable to work together for the good of the team and the clients. I do not believe he would have been so aggressive and unpleasant to a male in my position. He certainly would not have been as aggressive and bullying.''

She further claimed the authority had a ''clear culture of institutionalised bullying'' and she was not prepared to allow the council to humiliate her any longer.

The tribunal rejected her complaints. In a written judgment, employment judge Frances Eccles said the tribunal agreed with the council that Ms Rodger ''exaggerated normal office interaction in an attempt to show the existence of a culture of bullying and harassment.''

The tribunal added that those working with Ms Rodger, in particular Mr Andrew Dunn and Mr Hornell, while at times frustrated by her attitude to their reasonable attempts to manager her, did not subject her to bullying and harassment.

Solicitor Emma Bell of Brodies, representing North Ayrshire Council, disclosed that it had cost the authority over £100,000 to defend the action against the council and the six officials, for which the council bore the costs as it believed they had committed no wrong doing. Ms Bell argued Ms Rodger had acted vexatiously and otherwise unreasonably in bringing and conducting the proceedings.

Ms Rodger denied she had acted vexatiously or unreasonably, she genuinely believed she had been subjected to improper conduct by a number of individuals over a period of time.

The tribunal concluded she had not acted vexatiously but found her action in raising sex discrimination and victimisation claims against particular individuals was misconceived and unreasonable.

Ms Rodger, of 16 Townend, Kilmaurs, has now been ordered to pay £6,000 towards North Ayrshire Council's expenses.

The tribunal did not agree with the claimant that if the claims were misconceived, the respondents should have sought strike out or pled no case to answer. The tribunal did not accept that the respondents were precluded from seeking costs in circumstances where they did not seek strike out or chose to lead evidence to contradict that of the claimant. The claimant made serious allegations against the individual respondents. They were entitled to respond and give evidence to support their version of events notwithstanding their position that the claims were misconceived.

In addition, the tribunal concluded that the claimant had acted unreasonably in bringing proceedings against the six individual respondents. The tribunal did not agree with the claimant that she was entitled to cite individuals as respondents in anticipation that they might give evidence that would support her case. To do so was unreasonable. The individual respondents could not be criticised, given their status as parties to the proceedings, for giving evidence at length to counter the specific, and in some instances, very serious allegations being made against them as individuals. This inevitably prolonged the proceedings. It increased the costs incurred by the respondents. In all the circumstances, it was unreasonable of the claimant to bring proceedings against the individual respondents.

Representation

Claimant - Mr S Johnston - Non-practising barrister

Respondents - Ms E Bell Solicitor Brodies

Sarti (Sauchiehall St) Limited v Mr A Polito UKEATS/0049/07

Wed, 16 Jul 2008 12:14:00 GMT

Contract of Employment - Sick pay

This is an appeal concerning entitlement to statutory sick pay. The Employer refused to pay SSP on the grounds that they believed the Claimant was working elsewhere. The Employer argues that the Tribunal has no jurisdiction to hear the claim and that the question of whether or not SSP should be paid here is one for the Benefits Agency to determine. The EAT held that there was no jurisdiction to hear the Claimant's claim.

O2 (UK) Limited v Gerard Wallace UKEATS/0050/07

Wed, 16 Jul 2008 12:13:00 GMT

Contract of Employment - Implied Term/Variation/Construction of Term

This appeal concerns a Statement of Particulars of employment relating to holiday entitlement and the inclusion of provision whereby shift worker’s holiday allowance of 23 days to be calculated on an hourly basis. Dispute over how many hours constitute a day. Appeal dismissed.

William Hill Organisation Limited v Mrs T McRobbie UKEATS/0005/08

Wed, 16 Jul 2008 12:12:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Claimant dismissed for gross misconduct in having taken taxi money without prior authority. Tribunal satisfied that dismissal was outwith the range of reasonable responses in whole circumstances which included that she had put the cost through her employers EPOS system so that it was evident who had taken the cash and what it had been taken for, that she would have clearly been entitled to bus fares (which would have fallen not far short of the taxi costs), that she had no other means of getting to work to act as a relief manager at a place which was not her regular place of employment, that she was a long standing employee and that the employers drew no distinction between employees who took money without leaving any trace of who had done so or why and circumstances such as in the present case. Tribunal’s conclusion not disturbed on appeal.

Mrs M Averns (on behalf of Mr Averns deceased) v Stagecoach in Warwickshire UKEAT/0065/08

Wed, 16 Jul 2008 12:09:00 GMT

Jurisdictional Points - Extension of time: reasonably practicable

The Employment Tribunal found that claims for unfair dismissal and disability discrimination, brought by the estate of a deceased employee, were out of time. They held that it was not reasonably practicable to present the claims in time, but that the wife of the claimant had not acted reasonably and promptly thereafter. Accordingly they held that the claim had not been put in within a reasonable period thereafter with respect to the unfair dismissal claim; and that it was not just and equitable to extend the time with respect to the disability discrimination claim.

The EAT held that in concluding that the wife had not acted promptly and reasonably, the Employment Tribunal had not given proper consideration to their important finding that she was ignorant that the estate could pursue these rights after her husband’s death. The appeals were upheld and the case remitted to a fresh tribunal.

Kingston Upon Hull City Council v Mr P F Matuszowicz UKEAT/0409/07

Tue, 15 Jul 2008 12:26:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

Having correctly held that three of the Claimant’s four DDA claims were out of time, parity of reasoning made the fourth out of time as well, there being no continuing act for the Claimant to rely on. Judgment set aside.

John Browning Limited t/a Eldram Limited v Mr P Ketman UKEAT/0124/08

Tue, 15 Jul 2008 12:18:00 GMT

Unfair Dismissal - Contributory fault

Unfair dismissal. Contribution and Polkey deduction. Challenge to ET findings of fact. Need for Chairman’s Notes of evidence. Findings by ET permissible. No error in law.

Advance Security UK Limited v Mr M Musa UKEAT/0611/07

Tue, 15 Jul 2008 12:17:00 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

(1) An ET did not give the appearance of bias when the Employment Judge clarified for the Claimant-in-person the racial group he belonged to for the purposes of the Race Relations Act 1976.
(2) The ET erred in finding the Claimant made out a prima facie case when it constructed an inapt hypothetical comparator.
(3) The ET focussed on the wrong decision-maker and the judgment was perverse.

Autoclenz Limited v Mr J Belcher & Others UKEAT/0160/08

Tue, 15 Jul 2008 12:15:00 GMT

Jurisdictional Points - Worker, employee or neither

This is an appeal regardnig whether Claimants, who were car valeters, were (a) employees or (b) workers. The ET found that they were employees but that, in the alternative, they were workers. The Employer appealed against both parts of the decision and the EAT held that, while they weren't employees, they were indeed workers. Appeal allowed in part.

Mr A Abiola v North Yorkshire County Council & Others UKEATPA/0113/08

Mon, 14 Jul 2008 12:16:00 GMT

Practice and Procedure - Appellate jurisdiction/Reasons/Burns-Barke

Discretionary extension of time to enter a Notice of Appeal by 3 days, in the exceptional circumstances that an EAT caseworker, seeing 2 ET1s and 1 ET3, said the papers were “all right”, even though 4 ET1s should have been included.

Atlantic Air Limited v Mr A Hoff UKEAT/0602/07

Fri, 11 Jul 2008 12:24:00 GMT

Unfair Dismissal - Constructive dismissal

An employee’s acceptance of an employer’s repudiation of the contract of employment need not be communicated to the employer. An unequivocal overt act which is inconsistent with the subsistence of the contract may be sufficient, without any concurrent manifestation of intent directed to the other party. STC v Golodetz applied.

The assessment of such act or conduct is a fact for the Employment Tribunal to find.
The Employment Tribunal did not err in its finding as to the date of the employee’s acceptance and its finding of constructive unfair dismissal was upheld.

Mitie Group v Mrs S C Mullineaux UKEAT/0708/04

Wed, 09 Jul 2008 12:27:00 GMT

Transfer of Undertakings

An affected employee of a transferor may not complain under TUPE Regulation 10 or 11 of failure by a transferee to give information to the transferor. Employment Tribunal failed to give a judgment in this primary point in transferee’s case but it would not be remitted as the outcome is clear, based on construction of the Regulations.

Mr D Okinedo v (1) Northwest Guarding Limited (debarred) (2) Mr Neil Bynoe UKEAT/0510/07

Tue, 08 Jul 2008 12:22:00 GMT

Practice and Procedure - Amendment

Claimant brought a claim for, inter alia, racial discrimination against his employers, who were a company - When it appeared that the company was likely to be dissolved, he applied for permission to amend to include a claim against the individual alleged to have discriminated against him – That application was refused – Four months later he repeated the application on the basis that the dissolution had now occurred – The Chairman refused the application on the basis that it had already been considered – Held that he was entitled to do so: there was no material change of circumstances, and no other exceptional reason why the claimant should be allowed to renew his application in the interests of justice.

Department of Constitutional Affairs v Mr P O'Brien UKEAT/0139/07

Tue, 08 Jul 2008 12:18:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

Appeal against Chair’s exercise of discretion to extend time for a PTWR claim allowed. The Chair had asked whether there was a good reason not to extend, rather than whether there was a good reason to do so, and on his findings of fact the reason for delay was an honest, but unreasonable, belief that the applicable time limit expired three months later than it did. Six weeks of that delay had no other good reason. Cross-appeal as to date from which time runs in an appeal in respect of non-payment of pension arising out of allegedly discriminatory exclusion from a pension scheme dismissed.

Chelsea Football Club Plc v Mr P Smith UKEAT/0262/08

Tue, 08 Jul 2008 12:12:00 GMT

Practice and Procedure - Admissibility of evidence

Employment Judge ruling, in advance of substantive hearing, on admissibility of certain evidence. Illogical distinction within the evidence – lack of reasoning. Ruling below varied pursuant to s35(1) ETA 1996. Power in Employment Judge alone to rule on private hearing under rule 16(1) Employment Tribunal Rules

The Commissioner of Police of the Metropolis v Mr G S Virdi UKEAT/0598/07

Fri, 04 Jul 2008 09:31:00 GMT

Discrimination - Victimisation

The Claimant was a police officer whose application for promotion failed. He claimed that the decisions of the relevant panels were motivated by direct racial discrimination and/or by the fact that he had previously brought successful discrimination proceedings against the Force (i.e. victimisation). The Tribunal dismissed the former claim but allowed the latter. Held that the facts relied on by the Tribunal in support of an inference of discrimination contained a serious factual mistake and the remaining matters were incapable of supporting the inference.

EB v BA UKEAT/0139/08 & UKEAT/0138/08

Fri, 04 Jul 2008 09:29:00 GMT

Practice and Procedure - Striking-out/dismissal

The Employment Tribunal made an unless order against the claimant requiring her to take positive steps by a particular date. The Tribunal concluded that she had failed to take those steps and her case was automatically struck out. She sought a review to have the case reinstated. The employment Judge granted the review but refused any relief. She appealed both decisions.

The EAT held that there was no error of law by the Tribunal. Appeals dismissed.

Mr B J Claridge v Daler Rowney Limited UKEAT/0188/08

Fri, 04 Jul 2008 09:20:00 GMT

Unfair Dismissal - Constructive dismissal

The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance procedure. The Tribunal held that they considered that the employers had acted unreasonably, but that applying the principle adopted in Abbey National plc v Fairbrother [2007] IRLR 320 the grievance had been handled in the way a reasonable employer could have dealt with it and accordingly there was no repudiatory breach of contract.

The EAT held that this was a conclusion which the Tribunal was entitled to reach on the evidence. Accordingly, the appeal was dismissed. Observations on the reasoning in the Fairbrother case.

Mrs L Howes v Hinckley & Bosworth Borough Council UKEAT/0213/08

Fri, 04 Jul 2008 09:18:00 GMT

Practice and Procedure - Admissibility of evidence

The claimant sought disclosure of advice given by a qualified solicitor. The employment judge rejected the claim on the grounds that the advice was protected by both legal advice and litigation privilege. The claimant appealed arguing that the advice had not been given by the solicitor acting as solicitor, and that as regards litigation privilege, the dominant purpose in obtaining the advice was not any contemplated legal proceedings.

The EAT held that quite independently of privilege, the advice should not be disclosed because it was not relevant. In any event the judge had been entitled to find that even if relevant it was protected by legal advice privilege, although on the facts litigation privilege could not be made out.

Mr R C English v (1) Royal Mail Group Limited (2) Mr G Warburton UKEAT/0027/08 & UKEATPA/0098/08

Fri, 04 Jul 2008 09:05:00 GMT

Practice and Procedure - Bias, misconduct and procedural irregularity

An employment tribunal whose decision simply repeated verbatim the closing written submissions of one party and ignored those of the other party, and in doing so did not make a clear distinction between submissions and findings of fact, had failed to comply with the requirements of due process and of Rule 30(6) of the ET Rules of Procedure.

Renfrewshire Council v Mr B Martin UKEATS/0031/07

Wed, 02 Jul 2008 09:30:00 GMT

Age Discrimination

Age Discrimination. Local Authority employer who rejected the job application of a 63 year old but they could not have employed him. He was a councillor. Appeal upheld and claim struck out as having no reasonable prospects of success.

(1) John Lamb Partnership Limited (2) Ms P Steele v Mr D Parfett UKEAT/0111/08

Wed, 02 Jul 2008 09:22:00 GMT

Practice and Procedure - Chairman alone

The employer was debarred from participating in the proceedings for failing to lodge a response in time. The subsequent case was heard before an employment judge alone. The issue arose whether she had jurisdiction to hear it, or whether a full panel should have been provided. The EAT held that she did have jurisdiction.

Mrs S Lewald-Jezierska v (1) Solicitors In-Law Limited (2) Mr V Mehrotra (3) Mrs L Mehrotra UKEATPA/0336/05

Wed, 02 Jul 2008 09:18:00 GMT

Practice and Procedure - Withdrawal

This was an appeal against the Order of the Registrar in which the appellant claimed that she should be allowed to make an application out of time to set aside an Order in which her appeal to the EAT had been dismissed on her withdrawal. She alleged that she was suffering at the time from a mental illness and was not in an appropriate state properly to conduct her affairs. The EAT rejected the appeal and held that the medical evidence was far too thin; it also took into account the history of this litigation, and had some regard to the potential merits of the grounds of appeal.

Mr L Procek v Oakford Farms Limited UKEAT/0049/08

Wed, 02 Jul 2008 09:06:00 GMT

Statutory Discipline and Grievance Procedures - Whether infringed

Employee lodged a grievance but stated that it was intended to be informal and not a statutory grievance. Employment Tribunal held that in the circumstances it could not be treated as a statutory grievance, and since no other grievance had been lodged prior to presenting the claim, the Tribunal had no jurisdiction to hear the case.

EAT upheld the appeal and concluded that the grievance fell within the terms of the statute. However, it was pointed out that the employer’s reliance on it not being a formal grievance, and therefore failing to follow the statutory grievance procedure, would be taken into account when considering whether it was just and equitable to award an uplift to any award.

Mr N E Cordell v DHL Exel Europe Limited UKEATPA/1376/07

Tue, 01 Jul 2008 09:21:00 GMT

Practice and Procedure - Withdrawal

The appellant failed in pursuing unfair dismissal and wrongful dismissal claims in the Employment Tribunal. He appealed and was rejected under rule 3(7) and again after submitting a fresh ground of appeal under rule 3(8). He sought an oral hearing pursuant to rule 3(10). Before the application was heard, he applied for the appeal to be withdrawn. The Registrar acceded to the application and made an order dismissing the appeal. The applicant claimed to have made the application under a misunderstanding of the position of the respondent. He sought to have the order overturned.

On appeal, the President held that the decision to dismiss the appeal was, in the circumstances, plainly correct. The appeal was dismissed.

The Highland Council v (1) TGWU & Unison (2) GMB (3) All individual Claimants UKEATS/0048/07

Mon, 30 Jun 2008 09:23:00 GMT

Equal Pay Act - Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to the coming into force of the statutory grievance procedures met the requirements of regulation 18 of the Employment Act 2002 (Dispute Resolution) Regulations 2004. If not, whether letters written after the coming into force of the procedures met the requirements of regulation 9 or of paragraph 6 of Schedule 2 to the 2002 Act. Circumstances in which Employment Tribunal’s finding that they did so reversed on appeal by the EAT.

Mr M Savage v Nestle Waters Powwow Limited UKEAT/0548/07

Fri, 27 Jun 2008 12:12:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Construction of a contact as to whether overtime would be paid for. The Employment Tribunal’s error on this (if based on the written contractual terms, and in the absence of any cogent evidence that those terms had been amplified or varied by practice or further agreement) underpinned its findings as to the fairness of dismissal, purportedly for disobedience to a reasonable instruction, since if overtime was not to be paid for the instruction to work it might not be reasonable, or, if reasonable, the refusal to work it might, in the circumstances, not have merited dismissal. Unfairness remitted to a fresh Tribunal.