Employment Law Bulletin – Issue 101 – 24 May 2011

Monday 23 May 2011

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The government is consulting on changes to the EHRC, including closures of the EHRC's helpline and the ending of the EHRC strategic grants programme. The consultation closes on 15 June 2011. For further details, click here.

The government is also consulting on the introduction of flexible parental leave, on changes to the Working Time Regulations, and on requiring employers who lose an equal pay case to carry out a pay audit. The consultation closes on 8 August 2011. For further details, click here.

The government's consultation on Resolving Workplace Disputes has now closed the government's further plans are awaited.


Court of Appeal

Issue estoppel

Aitken v The Commissioner of Police of the Metropolis [2011] EWCA Civ 582
Where the Appellant had not raised a mixed legal and factual argument at the Tribunal, or in his appeal or in his skeleton argument, but raised it for the first time in oral submissions to the EAT, the EAT was justified in determining that the ET had not erred in finding against the Appellant. For the full judgment, click here.

Future losses

Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545
When calculating a Claimant's post-employment losses, the Tribunal can take one of two approaches. Normally, it will determine when the employee is likely to get another job on equivalent terms and calculate the loss to that date. Exceptionally, a Tribunal may determine that there is no real prospect of the employee ever obtaining an equivalent job. In such a case, the Tribunal has to assess the loss on the basis that it will continue for the course of the claimant's working life. In these circumstances the Tribunal is entitled to conclude that he has suffered permanent career damage and should be compensated accordingly. For the full judgment, click here.

High Court

Post-employment detriment

McKie v Swindon College [2011] EWHC 469 (QB)
An employer may be liable in the tort of negligent mis-statement in circumstances where the employer makes untrue and unfair statements about a former employee and the mis-statements cause the employee loss. For the full judgment, click here.

Article 6

Puri, R (on the application of) v Bradford Teaching Hospitals NHS Foundation Trust [2011] EWHC 970 (Admin)
The article 6 ECHR right to a fair trial is not engaged in ordinary disciplinary proceedings where all that could be at stake was the loss of a specific position, but Article 6 is engaged, if the effect of the proceedings could be to deprive an employee of the right to practise his or her profession. For the full judgment, click here.

Employment Appeal Tribunal

Working time

Ross v Eddie Stobart Ltd [2011] UKEAT/0085/10
A mobile worker required to work in excess of 48 hours per week, and who makes a protected disclosure, is potentially protected by the statutory whistleblowing regime. Where the worker does not make a protected disclosure, the worker is not protected under the statutory regimes to protect workers from detriment or dismissal. The EAT also considered, albeit obiter, whether as a result of the decision in Fuss v Stadt Halle [2010] IRLR 1080 workers can sue directly on the 48 hour weekly limit contained in the Working Time and Road Transport Directives. The EAT determined that whether that right applies or not, it does not apply to private sector workers such as the Claimant. For the full judgment, click here.

Burden of proof

Deer v Walford & Anor [2010] UKEAT/0283/10
Section 74(2)(b) of the Sex Discrimination Act 1975 provides that where an answer to a statutory questionnaire is evasive or equivocal, the Tribunal may consider it just and equitable to draw an inference of discrimination. Where however the answers to a questionnaire are not evasive but incomplete, and the lack of information is the failure of a busy man failing to give the questionnaire the attention it deserved, or to appreciate the extent of his obligations, that would not by itself justify any inference of intention to victimise. For the full judgment, click here.

Small v Barking Havering And Redbridge NHS Trust [2011] UKEAT/0536/10
Where a Tribunal has found that the first stage of the burden of proof exercise is satisfied, and there are facts from which an inference of discrimination could be inferred, but the Tribunal determines that the case is not proved, the Tribunal is obliged to provide reasons to explain why it found the employer has successfully discharged the stage 2 burden. For the full judgment,click here.

Equal pay

Beddoes & Ors v Birmingham City Council (Rev 1) [2010] UKEAT/0037/10
For the purposes of an equal pay claim, the claimant must provide a named comparator in the same employment. Sometimes a single employer is responsible for all its workers' pay but different groups of managers or governors may have the power to engage employees otherwise than on the employer's recommended terms. In these circumstances, despite the power of the managers or the governors, the comparator is still deemed to be employed within the same employment. For the full judgment, click here.

Retirement discrimination

Bailey v R & R Plant (Peterborough) Ltd [2011] UKEAT/0370/10
Schedule 6 of the Employment Equality (Age) Regulations 2006 provides a procedural right for an employee whose employer intends to impose compulsory retirement. By regulation 2(1) the employer must notify the employee in writing of their right to make a request not to retire on the intended date of retirement, and of the terms under which the request must be made. Regulation 5(3) provides that the employee must then write back, both making the request and referring specifically to the statutory provision under which the request is made. Each of these provisions are mandatory; and in particular where the employer has not set out the employee's duty to refer expressly to regulation 5(3), the dismissal loses the statutory protection against a finding of unfair dismisal. Provided that the real reason for dismissal was retirement, the dismissal will be deemed to be unfair. For the full judgment, click here.


Dabson v David Cover & Sons Ltd [2011] UKEAT/0374/10
It is not appropriate for an Employment Tribunal to scrutinise the marking in redundancy selections in the absence of an obvious mistake or an allegation of bad faith. For the full judgment, click here.

Procedure: time limits

John Lewis Partnership v Charman [2011] UKEAT/0079/11
Where a claim is submitted outside the ordinary three month limits, and a test of reasonable practicability applies, the Claimant will not be stopped from bringing his claim if he was ignorant of the time limit and his ignorance was reasonable. Where a Claimant did not know of the time limits, but appealed against his dismissal, and awaited the outcome of his appeal, it was not unreasonable for him to make no further enquiries. For the full judgment, click here.

Cullinane v Balfour Beatty Engineering Services Ltd & Anor [2011] UKEAT/0537/10
The Employment Judge erred in determining that a Claimant delayed unreasonably beyond the ordinary three month period, in circumstances where the Claimant was attempting to see a trade union adviser but the adviser was unable to see him in a period of four weeks. The Judge should not have determined that this delay was unreasonable without evidence from the trade union adviser. For the full judgment, click here.


Haldane Society of Socialist Lawyers, 26 May 2011, Len McCluskey, Sally Hunt, and John Hendy, "Standing up for trade union rights: past, present and future", 6.30pm, Congress House, Great Russell Street





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