Employment Law Bulletin – Issue 100 – 10 May 2011

Friday 6 May 2011

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Supreme Court

Fixed-term workers

Duncombe & Ors v Secretary of State for Children, Schools and Families [2011] UKSC 14
The renewal of short term contracts for teachers seconded to work in European Schools was objectively justified for the purposes of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The teachers were employed to do a particular job which could only last for nine years due to the rules under which they worked. The contracts were therefore not converted into permanent contracts by the operation of Regulation 8 of the Regulations. For the full judgment, click here.

Court of Appeal

Implied terms

Garratt v Mirror Group Newspapers Ltd [2011] EWCA Civ 425
Even though the collective agreement in relation to enhanced redundancy payments did not state that they were conditional upon signing a compromise agreement, in the circumstances of the case this was implied by custom and practice. For the full judgment, click here.

TUPE

Marcroft v Heartland (Midlands) Ltd [2011] EWCA Civ 438
Failure of the duty under Regulation 13 TUPE Regulations 2006 to provide the representatives of the affected workers with certain information cannot avoid the fact that the transfer that has taken place. Neither is compliance a condition precedent to an effective transfer of a contract of employment. There is no basis in fact or law for an implied term in the contract of employment that would render the transfer of it ineffective unless the employee has been provided with information by the employer about the transfer. For the full judgment, click here.

Fresh evidence

St Andrew's Catholic Primary School v Blundell [2011] EWCA Civ 427
An application to admit fresh evidence should normally be sought by way of a review to the Employment Tribunal rather than be considered on appeal. In the instant circumstances it was admitted by the Court of Appeal as it was related to the grounds of appeal. For the full judgment, click here.

Employment Appeal Tribunal

Statutory grievance procedure

South Ayrshire Council v Aitchison & ors UKEATS/0050/10/BI
The statutory provisions in relation to collective grievances had not been complied with where the representative did not identify the Claimants in writing before the filing of the ET1. The representative had enclosed a CD with the grievance letter stating it contained information on the Claimants including names and periods of employment in the form of a Schedule. In fact it only contained a list of 2,500 names, both male and female. The EAT in obiter remarks also stated that it did not agree that sending information on a storage device such as a CD met the requirement of being "in writing" for the purposes of the statutory provisions. For the full judgment, click here.

Employment status

Breakell v West Midlands Reserve Forces' and Cadets' Association UKEAT/0372/10/RN
The Employment Judge did not err in holding that the Claimant, an Army Cadet Force Adult Instructor, was not employed by the Respondent for the purposes of s68(1) Disability Discrimination Act 1995 given the findings that there was no obligation on the Respondent to provide him with work, there was no obligation on the Claimant to accept work offered, and he was paid only for the days he worked. For the full judgment, click here.

Illegality

Allen v Hounga & Anor UKEAT/0326/10/LA
The Claimant was party to dishonesty in obtaining a visa to come to England and after its expiry remained in the country illegally working for the Respondents looking after their children. The Claimant was beaten and abused during her employment and dismissed after being thrown out the house. The claims for unfair dismissal, breach of contract, unpaid wages and holiday pay could not be enforced due to the illegal contract. The discriminatory dismissal was correctly allowed to proceed because the claim was not inextricably bound up or linked with the illegal conduct (Hall v Woolston Hall Leisure Ltd [2001] ICR 99 applied, Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231 distinguished). The Claimant was not entitled to an award for loss of earnings as she was not allowed to work in this country, however there was no error of law in the award of damages for injury to feelings. For the full judgment, click here.

Effective date of termination

Wang v University of Keele UKEAT/0223/10/CEA
Under section 97(1) Employment Rights Act 1996, the effective date of termination in notice cases is "the date on which the notice expires". The EAT held that the reasoning in West v Kneels [1987] ICR 146 should be applied to cases of written notice, that is that notice given on a working day does not include that day, unless there is an express term in the agreement dealing with when notice starts or the agreement that notice is to start immediately can be construed out of the wording of the contract and the wording of a letter set in the factual matrix of the case. The EAT included within the concept of written notice SMS text message, internet based instant messaging and email. In the present case notice received by email on the afternoon of one working day did not begin until the next day. For the full judgment, click here.

Unfair dismissal

Kurumuth v NHS Trust North Middlesex University Hospital UKEAT/0524/10/CEA
The Employment Tribunal had not erred in finding that the Claimant was procedurally but not substantively unfairly dismissed, but that the Respondent would have dismissed the Claimant fairly within a short time thereafter, as it had reasonable grounds for dismissal in the light of its genuine belief that the Claimant was not legally entitled to work. It took all steps which were reasonable in the circumstances to investigate the matter. There was therefore no error in reducing compensation to the week that it would take to go through the proper procedure. For the full judgment, click here.

Lambert v Vicomte Bernard de Romanet Ltd UKEAT/0501/10/SM
The Employment Tribunal had not erred in finding that the Claimant had contributed to his dismissal for prolonged sickness absence to the extent of 100 per cent for the purposes of section 123(6) Employment Rights Act 1996 and (b) that it would not be just and equitable to make any award under section 123(1) as he had misled the Respondent as to his previous medical history prior to his appointment and failed to respond to enquiries during a 16 month period although he had pursued an expenses claim.

Agency workers

Mahood v Irish Centre Housing Ltd UKEAT/0228/10/ZT
The EAT found there was no support in the authorities for importing into employment legislation relating to discrimination the concept of the "temporary worker" used to create vicariously liability at common law in tort. If an Employment Tribunal is to find that an employer is liable for acts of discrimination by an agency worker it would need to give a careful explanation of the facts it has found giving rise to the conclusion that the person in question was acting either as an employee or agent of the Respondent within the meaning of section 32 Race Relations Act 1976 and similar legislation. For the full judgment, click here.

Race discrimination

Mouladi v Ministry of Defence UKEAT/0463/10/JOJ
Under section 75(9) Race Relations Act 1976 as amended, a "service complaint" had to be brought to the military authorities before a claim could be brought in the Employment Tribunal. If a complaint was rejected as being out of time, it was not a valid "service complaint" and the Employment Tribunal had no jurisdiction to hear the claim. Directive 2000/43/EC did not require a different meaning to be given to the words "service complaint" so that it covered a complaint to the military authorities which was brought out of time. For the full judgment, click here.

Age discrimination

Hussain v Vision Security Ltd UKEAT/0439/10/DA
A finding by the Employment Tribunal that two younger colleagues had been offered work at an alternative site and the Claimant, who was nearing pensionable age, had not, and that the relevant manager's evidence when asked for an explanation was found to be untruthful, meant a prima facie case of age discrimination was established. In the circumstances the claim of age discrimination should have been allowed. For the full judgment, click here.

Mott Macdonald Ltd v Rivkin UKEAT/0488/10/DA
The Employment Tribunal had erred in finding that as the Respondent's witness had lied about its knowledge of the Claimant's age it could not accept what it found could be a plausible explanation given not offering alternative work on redundancy. In any event the finding that the Respondent had lied could not be sustained. For the full judgment, click here.

Disability discrimination

Noor v Foreign & Commonwealth Office UKEAT/0470/10/SM
The Employment Judge had erred in striking out the claim for disability discrimination by a job applicant as having no reasonable prospect of success for, among other reasons, that the Claimant had not identified any reasonable adjustments that could have been made at the interview and that in any event they would not have meant he would have been successful in the application. While the focus will normally be on any specific reasonable adjustment which the employee has put forward, an Employment Judge should carefully consider whether there is any other potential reasonable adjustment and should strike the claim out only if it is plain and obvious that there is none. This was not the case here. Project Management v Latif [2007] IRLR 57 applied. If the substantial disadvantage arises from arrangements for interview and relates to the ability of the disabled person (compared to persons who are not disabled) to perform in interview for a job, the purpose of a reasonable adjustment is to remove that disadvantage which the PCP has caused and create a level playing field for the disabled person in interview. If a reasonable adjustment should have been made for this purpose it is not fatal to the disabled person's case that he or she would still not have obtained the job. For the full judgment, click here.

Sex discrimination

Eversheds Legal Services Ltd v Belin UKEAT/0352/10/JOJ
The more favourable treatment of a comparator during a redundancy selection exercise in order to compensate her for a disadvantage due to her absence on maternity leave does not constitute unlawful sex discrimination, as long as the treatment is no more favourable than is reasonably necessary for that purpose. However in the instant case it was not reasonably necessary to accord the comparator a notional score on one of the criterion because there were more proportionate means available of ensuring that she did not lose out due to her absence. The Employment Tribunal had not erred in holding that the different scoring method constituted unlawful sex discrimination and the male Claimant had been unfairly dismissed. For the full judgment, click here.

TUPE

Spaceright Europe Ltd v Baillavoine & anor UKEAT/0339/10/SM
There did not need to be a specific transfer in contemplation at the date of dismissal for the dismissal to be connected to a subsequent transfer. The Employment Tribunal was correct to follow the approach in Harrison Bowden [1994] ICR 186; and would have been in error if it had followed Ibex Trading [1994] ICR 907. For the full judgment, click here.

Compromise agreements

Williams & ors v Glasgow City Council UKEATS/0036/10/BI
A local authority agreed settlement proposals in a large number of potential equal pay claims. They then contacted various large firms of solicitors who agreed to act for individual employees. The employees received presentations from one of the solicitors in a number of groups and then met individually with solicitors where they were advised on the terms and effect of the compromise agreement, but not on their own individual circumstances, and the agreements were signed. The Employment Tribunal had not erred in finding that the compromise agreements met the requirements of s77(4A) Sex Discrimination Act 1975 and were valid. There did not have to be a pre-existing claim at an Employment Tribunal or for a complaint to have already been articulated. On the facts the group presentation and the individual meetings met the requirement of advice on the terms and effect of the agreement. The facts pointed only to the solicitors having acted for the Claimants and in no respect did they indicate that, at any time in the course of events, they were acting in the matter for the Respondent. For the full judgment, click here.

Costs

HCA International Ltd v May-Bheemul UKEAT/0477/10/ZT
There is no general principle that an award of costs must follow when a party fails to establish a central allegation in their case. The case law relied upon by the Respondent in fact indicated that a lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the Employment Tribunal to examine the context and to look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct. In the instant case there were no findings at all that the Claimant's central allegations, or indeed any allegations made by her, were lies, or that she had deliberately persisted in pursuing complaints that she knew to be untrue. The Tribunal had not erred in refusing an application for costs. For the full judgment, click here.

Francois v Castle Rock Properties Ltd t/a Electric Ballroom UKEAT/0260/10/SM
The Employment Tribunal had erred in awarding costs against the Claimant for the unreasonable conduct of his representative. It seemed to have been argued that she was slow in her presentation of the case however no express findings were made. The EAT held that less experienced representatives may sometimes be slow in their presentation, or may slow the case down by taking points which might not be taken by a fully experienced representative. It does not follow that they have acted unreasonably or that they should be expected to adhere to the standards expected of specialist advocates. Careful findings are therefore required if it is to be said that the representative acted unreasonably merely by being slow in the presentation of a case. For the full judgment, click here.

 

 

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