Employment Law Bulletin - Issue 112 - 18 October 2011

Tuesday 18 October 2011

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Employment news

The overwork epidemic

Research from insurers Aviva suggests that 6 out of 10 employees work unpaid overtime each week. The average amount worked is 90 minutes in excess of a worker's ordinary hours. One in four workers reports feeling permanently tired, one in five admits to stress, and one in seven says that their diet has suffered as they have no time to cook. For more, click here.

New Tribunal rules; AJTC declines to comment

The government has sent to the Administrative Justice and Tribunals Council (AJTC) draft regulations (the regulations are otherwise unpublished) which would amend the Employment Tribunal Rules of Procedure in respect of witness statements and expenses, deposits and costs. The regulations anticipate the publication of the government's response to the consultation, Resolving Workplace Disputes. The AJTC, which was given just a week to reply to the regulations, has declined to comment on them. Its letter goes on to express criticisms of the potentially "chilling" effect of the government's proposed reforms of the Tribunal and to seek urgent clarification of the government's position on fees. For a copy of the letter, click here.

Employment Case Law

Court of Appeal


CF Capital Plc v Willoughby [2011] EWCA Civ 1115
As a matter of common law, an employer who uses unambiguous words of dismissal is deemed to have dismissed the employee, just as an employee who uses unambiguous words of resignation is deemed to have resigned. This rule can be disregarded however where "special circumstances" apply. For example, where there is an acrimonious exchange between an employer and an employee and the employee purports to resign, the employer should take time before accepting the resignation in order to ascertain whether the notice was in fact intended to terminate the employment. If he does not do so, the employer may be deemed to have dismissed the employee. In a case where an employer and an employee were involved in negotiations concerning a purported transfer of the employee's status from service to self-employed work, and (crucially) the employer actually intended to dismiss the employee, the doctrine of special circumstances did not apply and an employee acted reasonably in accepting the employer's dismissal of her. For the full judgment, click here.

Employment Appeal Tribunal

Reverse burden of proof in discrimination claims

Gay v Sophos Plc [2011] EAT 0452/10
In discrimination claims, where there are facts from which the Tribunal could decide, in the absence of any other explanation, that an act amounted to discrimination, the Tribunal must hold that the contravention occurred unless the discriminator shows that they did not discriminate (section 136 Equality Act 2010). This procedure amounts to a reversal of the burden of proof which otherwise rests on the party bringing a claim. In a case where a Claimant relied very heavily on the reversal of the burden of proof in her closing submissions to the ET, but the ET did not refer expressly to the reversal of the burden in its decision, the EAT held that this omission did not necessarily result in an error of law, provided that the Tribunal had determined clearly that the reason for treatment was discriminatory. As the Tribunal had so determined, the EAT upheld its decision on appeal. For the full judgment, click here.

TUPE and post-transfer variations

Smith & Ors v Trustees of Brooklands College [2011] EAT 128/11
In a transfer of employment, a purported variation of the contract shall be void if the sole or principal reason for the variation is the transfer itself (regulation 4(4), Transfer of Undertakings (Protection of Employment) Regulations 2006). Where an employer acquired, through transfer, a small group of lecturers who were paid a salary based on a national contract of 36 hours contact time with students per week but in fact had 25 hours contact with students, and the employer subsequently varied (i.e. reduced) their salary over the workers' protests, the EAT upheld the original decision of the Tribunal that the reason for the treatment was a fresh decision of the new employer rather than the transfer itself. The EAT held the test in regulation 4(4) cases is not a "but for" test, rather, the Tribunal must ask what was the reason for the treatment, which is a more restrictive test. For the full judgment, click here. The Claimants were represented by Catherine O'Donnell of Garden Court.

Fair procedure in dismissal

McBride v Falkirk Football & Athletic Club [2011] EAT 0058/10
As a matter of common law, when deciding whether there has been a fundamental breach of the employment contract, so that an employee is justified in treating himself as constructively dismissed, the standard of conduct to be expected of the employer is an objective standard and is not confined to the norms of behaviour of the particular industry in which the employer is based. So, the EAT has held, in determining a case where a manager of an under-19 football team was told, without any discussion, that the subsequently appointed Academy Director would be responsible for picking his side. The Claimant having resigned and claimed unfair constructive dismissal, the Tribunal held that the dismissal was fair, but its findings were overturned on appeal. In particular, the EAT held that it was illegitimate for the Tribunal to have determined the case on the supposed basis that an "autocratic style of management" was the norm in the football world. If so, that was irrelevant, as the test is an objective one. For the full judgment, click here.

Jurisdiction: High Court or Employment Tribunal?

Paymentshield Group Holdings Ltd v Halstead [2011] EAT 0470/11
Where claims are run in parallel in the Employment Tribunal and the High Court, as a matter of policy, they should not be allowed proceed side by side as this runs the real risk of different courts reaching opposing findings of fact on the same issues. One set of proceedings should be stayed; but which proceedings to stay will depend on the facts of the case. There are in general good reasons to keep employment cases in the Tribunal, which is a specialist court. On the other hand, the High Court has particular expertise where case is likely to involve complicated issues of fact or law (Mindimaxnox LLP v Gover and Ho [2010] EAT 0225/10). In a case which concerned live Tribunal proceedings and a prospective High Court claim, which the Claimant had no prospect of funding save through successful litigation at the Employment Tribunal, the EAT held that the Mindimaxnox principles do not apply merely where both Tribunal and High Court proceedings are fully under way; they also apply even where a Claimant has issued in the ET and has merely sent a letter before claim in the civil proceedings. For the full judgment, click here.

EAT procedure

Readman v Devon Primary Care Trust [2011] EAT 0116/2011
Where an appellant at the EAT is initially refused permission to appeal, the appellant may avail him- or herself of an oral application for permission (rule 3 (10) of the Employment Appeal Tribunal Rules 1993). At that hearing, it is not unusual for a judge to be persuaded than an appeal is more arguable than it first appeared, and it is not unusual for a judge to grant permission to amend the notice of appeal. The EAT held that it would be right therefore to allow a claim to be amended at the rule 3(10) hearing even in the unusual circumstances that a full two years had passed between the Tribunal hearing and the appeal. For the full judgment, click here.

Notices & coming events

A Framework for Fairness? Reviewing the Regulations on Part-Time and Fixed-Term Work
(9 November, 6.30-8.30pm)

Mark Bell addresses a meeting of the Industrial Law Society at the Royal College of Surgeons, 35-43 Lincoln's Inn Fields. Entry is free for members of the ILS or £10 for non-members. For more details click here.


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