Employment Law Bulletin - Issue 106 - 26 July 2011

Tuesday 26 July 2011

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Have your say - only 14 days to go

The Government is consulting on changes to employment law to encourage a more fair and flexible approach at work. Among other issues, the consultation seeks views on a new system of flexible parental leave which will allow mothers and fathers to share leave, and give parents and employers greater choice about how leave is taken. This consultation closes on 8 August 2011. Click here to download the consultation and have your say.

Still waiting

Employment lawyers are still awaiting the government's response to the Resolving Workplace Disputes consultation which closed on 20 April of this year. Those following the consultation will recall that it was set up to elicit views from interested individuals on achieving early resolution of disputes in the workplace and trying to make the employment tribunal process more streamlined and user-friendly.

Is it a bird, is it a plane? No it's a Super Union

The Transport Salaried Staffs' Association (TSSA) and the National Union of Rail, Maritime and Transport Workers (RMT) have announced that they are in formal discussions about a potential merger. If the merger goes ahead it will create a union with an estimated 110,000 members. Click here to read the news story.

Employment Case Law

Supreme Court

Closed material procedure in the employment tribunal

Home Office v Tariq [2011] UKSC 35 (13 July 2011)
The Respondent was an immigration officer employed by the Appellants. The position required the Respondent to undergo security clearance which he passed successfully. In August 2006 the Respondent was suspended on basic pay and in December 2006 his security clearance was withdrawn following an internal investigation. The Respondent brought claims in the employment tribunal for direct and indirect discrimination. During the tribunal proceedings the Appellants applied to have the proceedings heard in private and a special advocate appointed to represent the interests of the Respondent. That application was successful and was subject to appeals before the EAT and the Court of Appeal, the latter decision going in favour of the Respondent. The Supreme Court considered whether the closed material procedure was compatible with European Union law and the Human Rights Convention. In finding for the Appellant's the Supreme Court commented that such cases required a balancing act and that in this case the balance was in favour of the Appellant given the paramount need to safeguard national security. Click here to read the full judgment.

Court of Appeal

Unpaid wages

Driver v Air India Ltd. [2011] EWCA Civ 830 (19 July 2011)
In a dispute about the payment of overtime, Mummery LJ makes some helpful comments about the desirability of bringing claims for unpaid wages in the employment tribunal rather than the county or High Court. Click here to read the judgment.

Employment Appeal Tribunal

Acceptance of repudiatory breach by reason of delay

Fereday v South Staffordshire NHS Primary Care Trust [2011] UKEAT 0513_10_2207 (22 July 2011)
The EAT held that in delaying for a period of six weeks and accepting sick pay before finally resigning, the Appellant could not claim constructive dismissal as the period of delay was of such a length so as to deem her acceptance of the breach of the employment contract. Click here to read the judgment.

Redundancy - offer of alternative employment

Bird v Stoke -On -Trent Primary Care Trust (Redundancy: Suitable alternative employment) [2011] UKEAT 0074_11_2107 (21 July 2011)
In deciding whether an offer of alternative employment is reasonable in a redundancy situation, a tribunal must look at the offers made from the employee's point of view and consider whether his/her reasons for refusing the alternative posts were reasonable or not. Click here to read the judgment.

Transfer of undertakings - change of service provision

Nottinghamshire Healthcare NHS Trust v Hamshaw & Ors (Transfer of Undertakings: Service Provision Change) [2011] UKEAT 0037_11_1907 (19 July 2011)
The employment tribunal was entitled to find that there was no TUPE transfer (whether a transfer of undertaking or a service provision change) where residents of a care home operated by an NHS Trust were re-housed in individual homes; and the Claimant care workers, formerly employed by the NHS Trust at the care home, were then offered employment by the Second or Third Respondents, in most cases to sleep in at the service users' homes. The economic entity did not retain its identity, and the services provided were not fundamentally or essentially the same after the change as they had been before. Click here to read the full judgment.

Strike out - claimant incapable of bringing claims to a fair and orderly trial

Fariba v Pfizer Ltd & Ors (Practice and Procedure: Striking-out or dismissal) [2011] UKEAT 0605_10_1407 (14 July 2011)
The EAT upheld the decision of the employment tribunal to strike out claims brought by the Appellant in circumstances where she had disregarded orders of the tribunal and had made a number of allegations in letters addressed to the Respondents, their solicitors, the tribunal and her own previous solicitors. Click here to read the judgment.

Upcoming events

Using Judicial Review to challenge breach of public sector equality duty in the public sector

The specialist practitioner groups appear to be winding down for the summer, so not much to report in the way of events. Just a reminder though about the Discrimination Law Association's lecture by Louise Whitfield entitled "Using Judicial Review to challenge breach of public sector equality duty in the public sector" which will take place at 6pm on 27 July 2011. Click here and log in for the location and further details.

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