Employment

Mr A C Unegbu v Newman Stone Limited UKEAT/0157/08

Fri, 07 Nov 2008 12:35:00 GMT

Practice and Procedure - Costs

Tribunal failed to make sufficient findings to support a costs order. Withdrawal of proceedings by itself was insufficient to warrant a costs order being made.

City & County of Swansea v Mr R M Honey UKEAT/0030/08 & UKEAT/0549/07 & UKEAT/0029/08

Fri, 07 Nov 2008 12:28:00 GMT

Practice and Procedure - Amendment

This is an appeal relating to allegations of bias. Claim of unfair dismissal by senior legal executive against local authority employer. Claim upheld and substantial award of compensation ordered. One of the Tribunal lay members was District Secretary of the RMT Trade Union and, at the time of all relevant hearings in the case, was involved in that capacity in a dispute with the Respondents regarding their licensing of taxi cabs. He had criticised the Respondents openly, in writing and in a press statement and was reported by the local press as having ‘blasted’ the Respondents’ report on the matter as ‘extremely biased’ and as having shown ‘very poor leadership and inefficiency’. The Respondents’ legal services department did not become aware of his involvement in the taxi licensing dispute until after the merits hearing; they unsuccessfully sought a review on bias grounds. They appealed to the EAT and the EAT upheld the appeal; this was a plain case of apparent bias and it was surprising (a) that the lay member had not volunteered the relevant information and (b) that the Tribunal had not itself recognised, when the matter was aired at review, that the demands of impartiality required that the review be granted.

Telindus Limited v Mrs C Brading UKEAT/0164/08

Fri, 07 Nov 2008 12:01:00 GMT

Unfair Dismissal - Compensation

In the Sheffield Forgemasters case, the claimant succeeded in claims for various types of disability discrimination against her former employer. In the Telindus case the claimant succeeded in a claim for unfair dismissal against her former employer. In both cases, the claimants claimed compensation for loss of future earnings in respect of periods when they were receiving incapacity benefit. The Employment Tribunal in each case held that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period. Issues on appeal were the Employment Tribunal correct (a) in each case to hold that receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period; and (b) in Telindus to reject the respondent’s contention that the claimant had failed to mitigate her loss.

Appeals dismissed by the Employment Appeal Tribunal. As to (a) receipt of disability benefit did not preclude the claimants from claiming compensation for loss of earnings during the same period because the relevant statutory provisions enabled a person who was fit to work to obtain disability benefit (i) in the first 196 days of entitlement if, for example he or she was not being paid for his or her work(see paragraphs 17 -22) and (ii) thereafter if he or she had certain disabilities such as inability to walk up and down a flight of 12 stairs but could still work(see paragraphs 23-27); As to (b) the Employment Tribunal was entitled on the evidence in Telindus to reject the respondent’s contention that the claimant had failed to mitigate her loss.

Suffolk Mental Health Partnership NHS Trust v (1) Mrs L Hurst (2) Ms M Thompson (3) Ms J Taylor UKEAT/0332/08

Thu, 06 Nov 2008 11:59:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

These appeals raise the issue what detail needs to be provided in an equal pay case when an employee raises a written grievance as required by the first step in the statutory standard grievance procedure set out in paragraph 6 of Schedule 2 to the Employment Act 2002. The EAT held that the information can be minimal and need state no more than that the claim is a claim under the Equal Pay Act (which was all the information in fact given in the Sandwell case.) Observations on the proper approach to the construction of paragraph 6.

Ms C A Arnold & Others v Sandwell Metropolitan Borough Council UKEAT/0366/08

Thu, 06 Nov 2008 11:59:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

Step in Time Limited v (1) Mrs M Fox (2) Mrs E M Hunter UKEATS/0031/08

Thu, 06 Nov 2008 10:54:00 GMT

Statutory Discipline and Grievance Procedures - Whether infringed

The employment judge held that the two claimants had complied with the statutory grievance procedures and that the Tribunal had jurisdiction to hear their claims for constructive unfair dismissal. He did so, however, in part by treating an ET1 as constituting a grievance. That was contrary to the EAT decision in Gibbs t/a Jarlands Financial Services v Harris UKEAT/0023/07.

The EAT held that notwithstanding this error, there was other material which justified the conclusion that Mrs Hunter had raised the relevant grievance and that her subsequent claim essentially raised the same complaint. However, the position was not clear with respect to Mrs Fox. The case was remitted to the same employment judge to determine whether the Tribunal had jurisdiction or not.

Manchester Airport Plc v Mr J N McCall UKEAT/0230/08

Wed, 05 Nov 2008 12:31:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Majority view of Tribunal that the investigation was insufficient and dismissal was an impermissible sanction was incorrect in that they did not apply test of reasonable employers but imposed their own subjective view.

Mr S Deman v (1) Victoria University of Manchester (2) Professor Andrew Stark (3) Professor Stuart Turley UKEAT/0211/06

Tue, 04 Nov 2008 12:38:00 GMT

Practice and Procedure - Costs

If a Tribunal considers that the conduct of the proceedings by a party or his representative has been vexatious, abusive, disruptive or unreasonable, the Tribunal is under a duty to consider making an award of costs irrespective of the terms of the opposing party’s application, if any, provided that it is satisfied that the opposing party has incurred costs of at least the amount which it awards.

East Living Limited v (1) Mr R Sridhar (2) TSG Services Limited UKEAT/0476/07 & UKEAT/0538/07

Tue, 04 Nov 2008 12:31:00 GMT

Jurisdictional Points - Worker, employee or neither

Tribunal found that Claimant was employed by end – user. On appeal, the Employment Appeal Tribunal held that the Tribunal had not applied the correct test in law (James v Greenwich London Borough Council [2008] ICR 545) and that on their findings in fact, the circumstances whereby the Claimant’s services were provided to the end- user were adequately explained by the express contractual arrangements. The Claimant had not become an employee of the end – user.

Mrs N Norris v Great Dawley Parish Council UKEAT/0266/08

Tue, 04 Nov 2008 12:27:00 GMT

Unfair Dismissal - Constructive dismissal

The claimant was employed by the respondent from 5 April 2006 until February 2007 when she resigned. She had been allowed to work for one day each week at her home until the respondent unilaterally required her to work solely at the Parish Office. The Employment Tribunal held that this was not a repudiatory breach and relied on the fact that there had been many other consensual changes to her contract. The claimant appealed.
Issue was whether “the requirement that the claimant to work all hours in the Parish Office was a repudiatory breach, which when accepted, constituted a constructive dismissal”.
Held that it was a repudiatory breach because (a) in spite of many changes to her contact of employment, she had always been allowed to work for one day at home; (b) there was a substantial distance from the claimant’s home to where she worked and (c) it was clear that the right to work at home for one day each week was particularly important for her

European Credit Management Limited v Ms A Horro UKEAT/0240/08

Mon, 03 Nov 2008 12:37:00 GMT

Practice and Procedure

The issue was whether the modified grievance procedure had been satisfied in relation to a claim for larger payments when no specific mention of such payment had been made in any of the grievance documentation. A grievance letter was to be interpreted in an unsophisticated and more technical way and it was inappropriate to use as a yardstick of construction the judicial definition of pay in Degnan & Ors v Redcar & Cleveland Borough Council [2005] IRLR 615.

(1) Centrica Storage Limited (2) Lewis Silkin LLP v Mr P G Tennison UKEAT/0336/08 & UKEAT/0337/08

Mon, 03 Nov 2008 12:28:00 GMT

Practice and Procedure - Amendment

Tribunal correct in refusing leave to amend response very near to final hearing as Claimant had not altered his case as to liability in witness statements.

Mr M J Ashraf v The Metropolitan Police Authority UKEAT/0205/08

Fri, 31 Oct 2008 16:36:00 GMT

Unfair Dismissal - Reasonableness of dismissal

Dismissal for gross misconduct – argument based on disparate treatment of alleged comparators failed on the facts.

Ms J Hibbins v Hesters Way Neighbourhood Project UKEAT/0275/08

Fri, 31 Oct 2008 16:34:00 GMT

Victimisation Discrimination - Whistleblowing

The issue raised on this appeal was whether the whistle blowing provisions contained in section 43A to section 43M of the Employment Rights Act by the Public Information Disclosure Act 1998 afford protection for disclosure that does not reveal any “wrongdoing” or “failure” by the employer or person for whom the employer is responsible? The EAT held that such protection is given to the employee.

Gisda Cyf v Miss L J Barratt UKEAT/0173/08

Thu, 30 Oct 2008 16:37:00 GMT

Jurisdictional Points - Claim in time and effective date of termination

Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post.

Roofdec Limited v Mr J O'Keefe UKEAT/0247/08

Thu, 30 Oct 2008 16:36:00 GMT

Unfair Dismissal - Mitigation of loss

The Tribunal incorrectly applied a percentage reduction to losses by reason of failure to mitigate. The Tribunal should have fixed a date when they believed the Claimant would have found employment and calculated losses accordingly.

Mr A Goodin v Toshiba Tec Retail Information Systems SA UKEAT/0271/08

Thu, 30 Oct 2008 16:35:00 GMT

Unfair Dismissal - Automatically unfair reasons

The Tribunal were correct in reducing compensation by 100% in an automatic unfair dismissal where the breaches of procedure would have made no difference to the decision to dismiss for redundancy.

Mr S S Saminaden v Barnet Enfield & Haringey NHS Trust UKEAT/0018/08

Tue, 28 Oct 2008 16:38:00 GMT

Unfair Dismissal - Dismissal/ambiguous resignation

The Claimant claimed unfair direct dismissal and constructive dismissal and unlawful deductions. The ET at a PHR dismissed (with costs) his unfair dismissal claims on the grounds that the Claimant had not been dismissed and were, in any event, out of time. He had been dismissed for misconduct, on appeal, demotion was substituted for dismissal; but the Respondents could only demote if the Claimant agreed. He was directed to work in the demoted post – which he did under protest, before leaving. His first ET1 was not accepted by the Employment Tribunal on the ground that he had not satisfied the Dispute Resolution requirements; he did so and presented a second ET1.

The provision that demotion could only take place with the Claimant’s agreement had the effect that, absent such agreement, this was not a Roberts v West Coast Trains type case but was closer to Hogg v Dover College; the finding that the claimant had agreed was perverse; and therefore he had been dismissed. The second claim was not out of time; time was extended by Regulation 15 of the Dispute Resolution Regulations. The Employment Judge had omitted in any event to deal with the Claimant’s constructive dismissal claim based on his assertion that the entire disciplinary process was a sham. Appeal allowed. Case remitted to the Employment Tribunal to hear on merits.

Live Nation (Venues) UK Limited, Mr S Murtagh, Mr B Newman v Mr G Hussain UKEAT/0234/08, UKEAT/0235/08 & UKEAT/0236/08

Tue, 28 Oct 2008 16:33:00 GMT

Age Discrimination

It was conceded that the claimant had been automatically unfairly dismissed for failure to comply with the statutory dismissal procedures. The Tribunal also found that he had been subject to age discrimination.

The employers raised various grounds of appeal. The EAT held that those directed towards the Tribunal’s assessment of remedy disclosed no error of law, save that no allowance had been given for pay in lieu made by the employer and credit had to be given for that. However the EAT held that the Tribunal had erred in its approach to age discrimination. In the circumstances, the only proper inference was that there was no evidence of such discrimination. The appeal therefore succeeded in part.

Mr S Weare v HBOS Plc UKEAT/0300/08

Tue, 28 Oct 2008 16:32:00 GMT

Jurisdictional Points - 2002 Act and pre-action requirements

The EAT upheld an appeal by the employee against a decision of the Employment Tribunal which held that it had no jurisdiction to hear certain claims alleging discrimination by reason of having made protected disclosures because the employee had failed to comply with the statutory grievance procedures. The EAT held that where a grievance is raised referring to the decision to initiate disciplinary procedures, it will relate also to disciplinary steps taken in the course of carrying out the disciplinary process. To that extent, therefore, the appeal succeeded and the case remitted back to the Tribunal to consider the protected disclosure cases listed on the claim form.

Mrs Bernadette Baxter & Others (Sub Multiple of the Surtees Litigation) v Middlesborough Council UKEAT/0282/08

Mon, 27 Oct 2008 09:24:00 GMT

Equal Pay Act - Case management

In multiple equal pay claims the ET found that documents relating to a 2004 job evaluation exercise were privileged and need not be disclosed by the employers. The appeal, insofar as it attacked that conclusion, failed; see the first judgment.

This second judgment deals with the attack on the Employment Tribunal’s further conclusion that that privilege had not been waived.
Held
1) the Employment Tribunal were entitled to conclude that there had been no waiver
2) there had not been a partial waiver by waiver of other documents of the same class which made it unjust for the employers to rely on privilege
3) Article 6 did not alter the common law position.

Chief Constable of West Yorkshire Police, The West Yorkshire Police Authority & Others v Mr T Homer UKEAT/0191/08

Mon, 27 Oct 2008 09:19:00 GMT

Age Discrimination

The Tribunal found that the claimant had been discriminated on grounds of age. The employers introduced a requirement that to be graded at the top grade, and to receive the higher salary linked to that grade, an employee had to have a law degree. The claimant submitted that this was age discrimination. The Tribunal agreed on the grounds that given his age - he was 61 - he was not able to obtain a degree before he retired, unlike younger workers who would be able to do so. Accordingly, the Tribunal concluded that there was discrimination directed against those without a law degree who were within the 60-65 age bracket. The Tribunal considered the issue of justification but concluded that although the employers were seeking to achieve a legitimate objective, namely the recruitment and retention of staff of an appropriate quality, nonetheless the imposition of this criterion was not a proportionate means of achieving it.

The EAT held that there was no discrimination. The claimant had suffered no particular disadvantage as a result of his age. He was treated in precisely the same way as everyone else. It was true that he could not materially benefit from any law degree he might obtain, but that was because his working life was limited. Any improvement in terms which an employer gives will benefit older workers for a shorter period than younger ones. Any disadvantage can properly be described as the consequence of age, but it is not the consequence of age discrimination.

However, had the claimant been able to establish the requisite group disadvantage, the EAT would have upheld the finding that any age discrimination was not justified.

Mr M Ali v Birmingham City Council UKEAT/0313/08

Mon, 27 Oct 2008 09:18:00 GMT

Unfair Dismissal - Dismissal/ambiguous resignation

The claimant handed in a letter of resignation to the respondents and he was then given a period of about 30 minutes to reconsider his decision. He confirmed that he wished to resign but he later sought to change his mind. The claimant claimed that he had been unfairly dismissed.
The Employment Tribunal held that the claimant had resigned and therefore no claim could be brought for unfair dismissal.

The claimant appealed contending that that there were special circumstances which existed in this case which showed that he had not validly resigned and that he could bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278 as he resigned in the heat of the moment.

Held that The Employment Tribunal were correct to hold that this was a valid resignation and that the claimant could not bring himself with one of the exceptions to the general rule in Southern v Franks Charlesly [1981] IRLR 278

Mr G Saini v (1) All Saints Haque Centre (2) Mr D Bungay (3) Mr S Paul UKEAT/0227/08

Fri, 24 Oct 2008 08:22:00 GMT

Religion or Belief Discrimination

Discrimination on grounds of religious belief. Tribunal erred in considering only whether or not the Respondents mistreated the Claimant on the grounds of his religion in circumstances where they found as fact they mistreated him for the purpose of seeking to get rid of another employee on the grounds of that employee’s religion.

Mr E Muschett v HM Prison Service UKEAT/0132/08

Fri, 24 Oct 2008 08:22:00 GMT

Contract of Employment - Whether established

Tribunal Chairman correct not to imply contract between agency worker and end user.

The Corps of Commissionaires Management Limited v Mr D Hughes UKEAT/0196/08

Wed, 22 Oct 2008 07:20:00 GMT

Working Time Regulations

The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations. Under regulation 12 of those regulations, it is provided that “where a worker’s daily working time is more than six hours he is entitled to a rest break”. Such a break is for 20 minutes where, as in the present case, there is no collective agreement or workforce agreement in force.

Security guards fall outside these provisions but regulation 24 provides that employees should be given an equivalent period of compensatory rest.

The issu9s are:
A. if under the 1998 regulations, a worker was entitled to a rest break for each period of six hours which he works or whether he is only entitled to one period of rest for however long he works in excess of 6 hours (Issue A);
B. In what circumstances and in what manner is the claimant as a security worker entitled to compensatory rest under regulation 24? (Issue B); and
C. Could the claimant claim compensation for more than 3 months prior to the commencement of his claim? (Issue C)

As to issue A, a worker is entitled to one period of rest for how ever long he works in excess of 6 hours.
As to issue B, the Employment Tribunal has to adopt a two-stage approach in which it has first to be decided if the claimant’s case was such that it was not “possible for objective reasons [to] grant such [an equivalent period of compensatory]rest”. If the answer was in the affirmative in the sense that it was possible, the claimant would be entitled to an equivalent period of compensatory rest but if the answer was in the negative in the sense that it was not possible, then pursuant to regulation 24(b), the respondent will have to “afford the claimant such protection as may be appropriate in order to safeguard the [claimant]”.
As to issue C, a claim can only be made in respect of a prescribed period of 3 months from the time when the claimant should have been given a compensatory rest period unless the provisions of regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 apply in which case the prescribed period is extended to six months.

Mr B S Chagger v (1) Abbey National Plc (2) Mr N Hopkins UKEAT/0041/08, UKEAT/0606/07 & UKEAT/0037/08

Fri, 17 Oct 2008 08:26:00 GMT

Race Discrimination - Direct

C, aged 40, dismissed from bank ostensibly for redundancy, but the dismissal held by the Employment Tribunal to have been unfair and on racial grounds – Decision announced informally in immediate aftermath of hearing but delay of eight months in promulgating formal Judgment and Reasons - Compensation subsequently awarded in the sum of £2.8m. (incorporating 2% uplift under s. 31 (3) of the 2002 Act), using a 16-year multiplier taken from the Ogden tables on the basis that C would suffer career-long loss – R’s appeals against both liability and remedy decisions; C’s cross-appeal on quantum of uplift

Liability appeal dismissed – Held:
- Delay by Tribunal not such as to invalidate decision
- Tribunal correct to apply s. 54A (burden of proof provisions) notwithstanding C’s evidence that the discrimination was on grounds of “colour” rather than “race” or “ethnic or national origins” - Okonu v. G4S Security Services (UK) Ltd. [2008] ICR 598 not followed
- Various particular challenges to the Tribunal’s reasoning not upheld

Remedy appeal allowed – Tribunal had made a number of errors. Particular points:
- Tribunal should have considered whether C would have been made redundant on the same occasion even if Employers had not been motivated by his race – Submission that “the Polkey question” does not fall to be asked in discrimination cases rejected
- Compensation should have been limited to the loss of C’s employment with R
- Claim for compensation on the basis that C would suffer a stigma by reason of having brought proceedings against R not available in law
- Observations on the use of Ogden tables

Cross-appeal dismissed – Tribunal entitled to take the size of the award into account in applying s. 31 (4) - Aptuit (Edinburgh) Ltd. v. Kennedy UKEAT/0057/06 considered

E A Gibson Shipbrokers Limited v Mr E J Staples UKEAT/0178/08 & UKEAT/0179/08

Fri, 17 Oct 2008 08:23:00 GMT

Disability Discrimination - Reasonable adjustments

Tribunal was entitled to conclude that a combination of adjustments would have allowed an employee suffering from disability to return to work.

Mrs N Burt v UK Sports Centres Limited UK/EAT/0290/08

Thu, 16 Oct 2008 08:25:00 GMT

Practice and Procedure - Application/Claim

Employment Judge refusing to “accept” a claim for a redundancy payment (and associated claims) under rule 3 of the Rules on basis that claimant had not properly pursued the statutory grievance procedure – Held that Judge wrong to refuse to accept claim because claimant had raised an arguable case that it was not reasonably practicable for her to do so: See reg. 6(4) of the Dispute Resolution Regulations.

Redrow Homes (Yorkshire) Limited v (1) Mr C B Buckborough (2) Mr P Sewell UKEAT/0528/07

Fri, 10 Oct 2008 12:14:00 GMT

Jurisdictional Points - Worker, employee or neither

The issue in this appeal was whether workmen engaged by Redrow to work on their building sites were workers for the purposes of Reg. 2(1) of the Working Time Regulations, or were self-employed contractors. The standard contract between Redrow and the workmen had been adapted by Redrow so as to remove the provisions which led to their losing on that issue in 2004; the men agreed to provide such labour as was necessary to maintain the require rate of progress but were not obliged to perform the labour themselves.

Held, upholding the Employment Tribunal’s decision in favour of the men, that:
(1) the Employment Tribunal’s finding that the obligations provision in the contract was a sham did not contain any error law in the light of Consistent Group v Kalwak in the EAT and the CA.
(2) In any event the obligations provisions imposed on the men a duty either to provide the required labour themselves or to find someone else to do so; and thereby the men were under a contract personally to execute work and thus fell within Reg. 2(1).

Reclaiming Motion by the Respondents in the Petition of MATTHEW ROONEY (Petitioner) against STRATHCLYDE JOINT POLICE BOARD (Respondents)[2008] CSIH 54 P1330/05

Thu, 09 Oct 2008 12:43:00 GMT

Extra Division, Inner House, Court of Session-Reclaiming motion- ground of disablement under the Police Pension Regulations 1987 (S.I. 1987 No.257) as amended ("the Regulations")- The Petition by Rooney appealed against the decision of a medical practitioner certifying that he was permanently disabled in terms of the Regulations. The result of the certification was that he was compulsorily retired. The Lord Ordinary’s decision that the medical opinion should be overruled, appealed by the respondents. Disputed, whether medical examination in the form of an interview was sufficient to draw conclusions for the purposes of the Regulations; whether inferences could be drawn from content of the medical ‘interview’ about the petitioner’s capability to work as a police officer. Reclaiming motion allowed.

Mrs L Amey v Portsmouth Hospitals NHS Trust UKEAT/0130/08

Thu, 09 Oct 2008 12:13:00 GMT

Unfair Dismissal - Dismissal/ambiguous resignation

(1) Whether the Employment Tribunal failed to consider one of the bases on which the employee had alleged that she had been dismissed.

(2) Whether the Employment Tribunal’s decision that changes in the employee’s terms and conditions of employment were not so fundamental as to amount to the termination of her contract of employment (Hogg v Dover College) was perverse.

GFI Holdings Limited v Mr D Camm UKEAT/0321/08

Thu, 09 Oct 2008 12:11:00 GMT

Practice and Procedure - Case Management

Tribunal error in failing to order a stay of Tribunal proceedings, to allow a claim for bonus monies in the High Court to be determined where the issue of whether there was a dismissal and the reasons for dismissal were issues common to both proceedings.

Community Integrated Dental Care Limited v Miss D E Smith UKEATS/0015/08

Thu, 09 Oct 2008 12:09:00 GMT

Unfair Dismissal

Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based on reasonable grounds. The employment judge dissented. The employer’s appeal was upheld.

The EAT found that the majority had essentially substituted their view for that of the employer. There was plenty of evidence from which the employers were justified in concluding that the claimant had admitted committing the misconduct in issue. In the circumstances further investigation would have been superfluous. The conclusions of the majority were not sustainable in law.

A finding of fair dismissal was substituted.

Mr A Slingsby v Griffith Smith Solicitors UKEAT/0619/07

Tue, 07 Oct 2008 12:13:00 GMT

Unfair Dismissal - Reason for dismissal including substantial other reason

The Employment Tribunal found in favour of the Claimant on his claims of unfair dismissal and awarded compensation with 25% uplift. On the Claimant’s appeal to set aside the Judgment and remit for a fresh hearing, the Employment Tribunal’s Judgment was affirmed. There was no culpable delay in the proceedings.

Ministry of Defence v Mr J Botham UKEAT/0009/08

Tue, 07 Oct 2008 12:12:00 GMT

Unfair Dismissal - Reasonableness of dismissal

The Employment Tribunal did not err when it found the Respondent unfairly dismissed the Claimant, holding him 55% to blame.

Response 2000 International Plc v Mr C King UKEAT/0198/05

Fri, 03 Oct 2008 13:04:00 GMT

Unfair Dismissal - Polkey deduction

Employment Tribunal found that Claimant was unfairly dismissed on procedural grounds but failed to consider whether he would have been dismissed (fairly) had a proper procedure been adopted.

Mr M Grosvenor v (1) Governing Body of Ayleford School (2) Mr D Lawson (3) Ms S Burmis UKEAT/0001/08, UKEAT/0002/08 & UKEAT/0003/08

Fri, 03 Oct 2008 13:01:00 GMT

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

This is an appeal regarding overly long Employment Tribunal Reasons; Meek compliance; delay in promulgating Judgment; Perversity; the reason for dismissal (s103A); Race and Sex discrimination; and Victimisation. Majority of appeals dismissed and appeal by Mr Lawson allowed to a limited extent.

Mrs C Pike v (1) Somerset County Council (2) Secretary of State for Education & Skills

Fri, 03 Oct 2008 12:53:00 GMT

Equal Pay Act - Part-time Pensions

The Teachers’ Pension Scheme did not distinguish part-timers and full-timers, save for one rule which applied to teachers who retire and return to work. If the work was part-time it was not reckonable for pension, whereas full-time was. The agreed disadvantaged group was of part-time returners. As a matter of logic, the advantaged group, making up the rest of the pool, was full-time returners. A pool which included those under retirement age and still working did not test the discrimination alleged by the Claimant. Employment Tribunal Judgment reversed.

Over 13 years, an average proportion of 42.45 per cent of the disadvantaged pool were men and an average proportion of 57.55 per cent were women, a disparity of roughly 15 per cent. The EAT, agreeing with the Employment Judge’s tentative view, held the Claimant had shown disparate impact. The preliminary points were decided in the Claimant’s favour 14 years after the rule applied to her. The claim was remitted for Hearing of the case and of the Respondents’ defence of justification.

Mrs S J Hughes v Mr Graham and Mrs LYnne Jonest/a Graylyns Residential Home UKEAT/0159/08

Fri, 03 Oct 2008 11:55:00 GMT

Working Time Regulations

A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours a night, 7 nights a week, was entitled to treat those hours as working time for the purposes of the Working Time Regulations, and for periods when she was not actually sleeping to treat them as attracting the national minimum wage.

Employment Tribunal judgment reversed and remitted to the same Employment Tribunal for remedy.

Miss M Hunwicks v Royal Mail Group Plc UKEAT/0003/07/ZT

Thu, 02 Oct 2008 13:02:00 GMT

Time Limits - Just and equitable extension

The Tribunal had not erred in refusing to extend time on ‘just and equitable’ grounds, notwithstanding that the Appellant had not been aware of the relevant time limits and that – after the expiry of the time limit – she had received wrong advice from her trade union: Hawkins v Ball [1996] IRLR 258 distinguished.

The Royal Bank of Scotland Plc v Mrs J K Harrison UKEAT/0093/08

Thu, 02 Oct 2008 13:00:00 GMT

Time Off - Parental leave/dependant

The employee was told on 8 December that her childminder was unavailable for 22 December. She did all she could to make alternative care arrangements but was unsuccessful. She asked the employers for the day off, under s57A(1)(d) of the Employment Rights Act 1996, but they refused and subsequently disciplined her when she stayed at home to look after her children. The Employment Tribunal found that she had been subjected to a detriment for taking time off when, under s57A(1)(d), she was entitled to take that time off.

Held on appeal by the employers (1) that there was no warrant for the insertion of the words “sudden and” or “in emergency” into s57A(1)(d). Although Directive 96/34 which led to the introduction of s57A into the 1996 Act provided for narrow protection, Parliament had provided wider protection than the minimum required by the Directive; (2) that the passing of time between the employee’s discovery of the need for making alternative arrangements and the taking of time off was to be considered in the application of the word “necessary” s57A(1); the word “unexpected” in s57A(1)(d) was an ordinary word when applied on the facts of each case and should not be supplemented by the further words proposed; (3) the Employment Tribunal had made a factual decision which was not based on any error of law.

Mr J J Da Silva Junior v Composite Mouldings & Design Limited UKEAT/0241/08

Thu, 02 Oct 2008 11:54:00 GMT

Jurisdictional Points - Continuity of employment

Company A dismissed the employee and went into creditors’ voluntary liquidation. Six weeks later, when the employee was absent due to a temporary cessation of work pursuant to the Employment Rights Act 1996 s212(3)(b), and so that time counted towards one year’s continuous employment under s108, Company B hired him. Both companies were held in majority shareholding by the same person who dismissed and hired the employee. The Employment Judge erred in holding at a PHR that at the time of the re-hiring Company A did not exist. Both were associated employers over which the majority shareholder had control pursuant to s231(b), notwithstanding the role of the liquidator in A.

McLeod & Others (Formerly known by the title Henry & Others) v London General Transport Services Limited UKEAT/973/03

Wed, 01 Oct 2008 13:03:00 GMT

Unlawful Deduction from Wages

This is an appeal regarding collectively agreed terms and conditions of employment; incorporation by custom and practice; acquiescence; and unauthorised deductions from wages.

Secretary of State for Childrens Schools and Families v Mr J R Fletcher UKEAT/0095/08

Tue, 30 Sep 2008 12:58:00 GMT

Fixed Term Regulations

The Secretary of State for Children Schools and Families who employs teachers only in the European Schools may not claim as objective justification for imposing a 9 year fixed term rule on his employees, the existence of the rule in Staff Regulations adopted by the European Schools pursuant to a 1994 Statute.

Mr A Zeynalov v BP Exploration (Caspian Sea) Limited & Others UKEAT/0086/08

Wed, 24 Sep 2008 12:59:00 GMT

Practice and Procedure - Striking-out/dismissal

The ET proposed to strike out the Claimant’s claims and sent a Rule 19(1) letter to that effect. The Claimant asked for an oral hearing. The Employment Judge declined and, after considering written submissions only, struck out the claims.

It was conceded on appeal that the Employment Judge had, under Rule 18(6) and (7) no power to refuse an oral hearing; but the Respondents argued that, in reliance on Bache [2000] ICR 313 CA the EAT should decide that an oral hearing would have achieved nothing because the Employment Judge was unarguably right. Held that the denial of an oral hearing required by the Rules was too fundamental for the Bache approach to be applied even though the Employment Judge’s reasons were very likely to be right. Remitted to a fresh Employment Judge.

Mr D Berta v Hummus Brothers Limited UKEAT/0184/08

Wed, 24 Sep 2008 12:58:00 GMT

Working Time Regulations - Holiday pay

The Employment Tribunal declined to stay a holiday pay claim made under Part II of the ERA (because it would have been out of time if made under WTR) until the House of Lords decided CIR v Ainsworth. The reason was that they doubted whether the issue as to whether such a claim could be made by that route, as opposed to the sick pay/holiday pay issue, was before the House of Lords. Held, on the employer’s unopposed appeal, that the former issue was before the House of Lords (albeit not referred to the European Court of Justice), that if the ET had been aware that was so they would have been bound to have granted a stay, which was much more consistent with the overriding objective, and that the claim should be remitted to the ET for them to impose a stay.

(1) Richmond Pharmacology Limited (2) Mr A Bamingbose v Mr M A Gillani UKEAT/0146/08

Wed, 24 Sep 2008 12:57:00 GMT

Race Discrimination - Direct

Consent to appeal with controlled remission to fresh Employment Tribunal, given by Claimant at close of Respondent’s opening.

Mrs L Amey v Portsmouth Hospitals NHS Trust UKEAT/0130/08

Mon, 22 Sep 2008 08:52:00 GMT

Unfair Dismissal - Exclusions including worker/jurisdiction

(1) Whether the Employment Tribunal failed to consider one of the bases on which the employee had alleged that she had been dismissed.

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

Mon, 22 Sep 2008 08:51:00 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.

Mrs A Haritaki v South East England Development Agency UKEATPA/0006/08

Mon, 22 Sep 2008 08:50:00 GMT

Race Discrimination - Direct

On application of Race Relations Act 1976 the Employment Tribunal did not err in rejecting the Claimant’s complaint that, in context, depiction of her as Mediterranean was unlawful discrimination.

Employment Appeal Tribunal procedure on appeals explained.

Mrs B Shestak v The Royal College of Nursing & Others UKEAT/0270/08

Mon, 22 Sep 2008 08:49:00 GMT

Race Discrimination - Direct

Issues relating to s11 and s33 Race Relations Act 1976 correctly dealt with by a Tribunal on a striking-out application.

Mrs M J Lewis v Department of Work and Pensions UKEAT/0413/07

Tue, 16 Sep 2008 11:12:00 GMT

Unfair Dismissal - Constructive dismissal

The Employment Tribunal did not err when it dismissed the disabled Claimant’s claim that the Respondent unlawfully breached its duty to make reasonable adjustments when her made to measure office chair broke and, over 20 days pending repair, six substitutes were provided for her. The nature of the adjustment and the time it takes to put and keep it in place relate to reasonableness and are questions of fact. Observations on request for a transcript out of time.

Mr P Johnson v Awe Plc UKEAT/0131/08

Mon, 15 Sep 2008 11:09:00 GMT

Practice and Procedure - Estoppel or Abuse of Process

Disability discrimination claim dismissed by Employment Judge on the grounds of issue estoppel following settlement of two personal injury claims. Appeal allowed by consent and case remitted to ET.

(1) Hartlepool Borough Council (2) Housing Hartlepool Limited v Mrs M Dolphin & Others UKEAT/0007/08 & UKEAT/0008/08

Mon, 15 Sep 2008 11:06:00 GMT

Equal Pay Act - Material factor defence and justification

An Employment Tribunal did not err when it found that bonus schemes created in the 1970s in order to improve productivity were a sham and could not be used in justification as a genuine material factor to a claim of equal pay. The Tribunal erred in one respect when finding there was adverse disparate effect on women when they comprised 4 out of 28 workers in a relevant group and it had been submitted at the Employment Tribunal that this did not show a prima facie case of indirect discrimination. Appeals dismissed save for the above.

GFI Holdings Limited v Mr D Camm UKEAT/0321/08

Fri, 12 Sep 2008 11:13:00 GMT

Practice and Procedure - Costs

Industrial & Commercial Maintenance Limited v Mr A M Briffa UKEAT/0215/08 & UKEAT/0216/08

Fri, 12 Sep 2008 11:04:00 GMT

Working Time Regulations - Holiday pay

Effect of ‘relevant agreement’ (Regulation 2 Working time Regulations) on employer’s obligation to give notice of holiday to be taken by employee, under regulation 15.

Mr K Kennaugh v Mr D Lloyd-Jones t/a Cheshire Tree Surgeons UKEAT/0208/08 & UKEATPA/1135/07

Wed, 10 Sep 2008 11:04:00 GMT

Unfair Dismissal - Exclusions including worker/jurisdiction

Continuity of employment - correct question to be asked under s212(3)(a) Employment Rights Act. Capability to do the job for which he was employed. Appeal allowed and case remitted. Separate appeal; application under R3(10) dismissed (PA1135/07/DA).

Mrs R M Bennet v (1) Governing Body of Pennoweth School (2) Cornwall County Council (3) Mr T Crawford UKEAT/0207/08

Wed, 10 Sep 2008 11:03:00 GMT

Practice and Procedure - Striking-out/dismissal

Strike out re lack of jurisdiction. New point taken on appeal by way of amendment to Notice of Appeal. Whether appeal properly instituted; whether amendment ought to be permitted.

Mr P Walker v North Tees and Hartlepool NHS Trust UKEAT/0563/07

Tue, 09 Sep 2008 11:07:00 GMT

Time Off

Time off for safety representative training. Construction of Regulation 4(2) and 11(1) Safety Representatives and Safety Committee Regulations 1977. Appeal and cross-appeal allowed. Case remitted for rehearing by fresh Employment Tribunal.

(1) Messrs Dean & Dean Solicitors (2) Dr S Mireskanari (3) Mr J Bell (4) Mr T Edwards (5) Mr B Hoffman v Mrs S Dionissiou-Moussaoui UKEAT/0140/08

Tue, 09 Sep 2008 11:05:00 GMT

Practice and Procedure - Costs

The Employment Judge did not err in principle or omit a relevant or consider an irrelevant factor when dismissing Respondents’ applications for costs when much of a sex discrimination case was struck out.

Mrs S Moghal v (1) Mr Mahmood Hudda (2) Mrs Nasreen Hudda t/a Playhouse Montessori UKEAT/0210/08

Mon, 08 Sep 2008 11:02:00 GMT

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

Tribunal failed to make key findings of fact in a constructive dismissal case as to whether incidents had occurred leading to a breakdown of trust and confidence.

Gem Weld (UK) Limited v Mr Duncan Mitchell UKEATS/0053/07

Thu, 04 Sep 2008 11:11:00 GMT

Practice and Procedure - Review

Default judgment found that claimant’s claim of unfair dismissal succeeded. Employers subsequently barred from appearing at remedies hearing. Undertaking given by and on behalf of claimant regarding material to be put before tribunal at remedies hearing, on basis of which employers did not proceed with appeal against that bar, not obtempered, and tribunal proceeded to fix remedy in ignorance of it. When drawn to tribunal’s attention, it issued a judgment deciding that its remedies decision would be subject to review on the basis that the material which had not been put before the tribunal at the remedies hearing was clearly of relevance, but refused to allow the employers to be represented at that hearing. Following the review hearing, the tribunal decided that the matter could not be reviewed. Appeal allowed: the tribunal’s reasoning was not Meek compliant; further, the procedure explained in D and H Travel Ltd & Anr v Foster EAT0226/06 should have been followed. Order pronounced allowing the appeal, setting aside the tribunal’s judgment award of compensation and remitting the question of remedy to a freshly constituted tribunal for a hearing on remedy in which the employers would be allowed to participate.

Kitsons Environmental Europe Limited v Mr B Hendry UKEATS/0002/08

Thu, 04 Sep 2008 11:10:00 GMT

Unfair Dismissal - Contributory fault

Compensation for unfair dismissal. Claimant dismissed after he “lost it” and punched and broke a double glazed window at his place of work. Tribunal found he had contributed to his dismissal to the extent of 20%. Finding on contribution set aside on appeal as being without adequate reasons and remitted to the same tribunal to consider of new.

Mr R B M Booth v The Scottish Daily Record & Sunday Mail (1986) Limited UKEATS/0052/07

Thu, 04 Sep 2008 11:10:00 GMT

Contract of Employment

Reference under s.11 of the Employment Rights Act 1996 regarding statement of commencement date of employment. Written contract issued in 2001 showing start date of 1 October 2001 but claimant having worked for the respondents since 1990. Employment Tribunal’s judgment that 1 October 2001 was an accurate statement of the commencement date challenged on appeal as not being supported by adequate reasons. Appeal upheld and case remitted to a freshly constituted tribunal.

Mr D Mahon v Accuread Limited UKEAT/0081/08

Thu, 04 Sep 2008 11:08:00 GMT

Disability Discrimination - Disability

Where a claimant had been medically examined by a jointly instructed expert who credited his symptoms, and who had not been ordered to attend the hearing, it was unfair for the claimant to be cross-examined on the basis that he was exaggerating his symptoms.

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.