Employment Law Bulletin - Issue 114 - 15 November 2011

Tuesday 15 November 2011

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Employment news

Agency workers under attack again?

A leading business group has called on the Government to review its decision to give extra employment rights to temporary workers after claiming it was having a "significant" effect on recruitment prospects. Click here to read the news story.

Have a break, take a strike?

The Cabinet Office Minister, Francis Maude has suggested public sector workers planning to strike over pension changes stage a "token" walkout lasting just 15 minutes, about the time it would take to have a Gallagher break. The unions concerned have dismissed this as a gimmick. To read the news story click here.

And the winner is...

Employment and discrimination law specialist Shereener Browne of Garden Court Chambers has won the 15th annual Sidney Elland Goldsmith Bar Pro bono award for 2011. Click here to read the Bar Council's press release and here to read more about Shereener's practice.

Employment Case Law


Lustig-Prean & Beckette v. The UK
The ECHR held that the investigations carried out by the Ministry of Defence into the applicant's homosexuality that led eventually to his administrative discharge from the Armed Forces together constituted a grave interference with his private life as protected by Article 8.
The applicant further argued that the judicial review proceedings (click here to read the decision of the Court of Appeal in R v Ministry of Defence Ex p. Smith [1995] EWCA Civ 22 (03 November 1995) [1996] 2 WLR 305 ) did not constitute an effective remedy, and so argued breach of Article 13.
The ECHR found that the threshold at which the domestic courts could find the policy of the MOD irrational had been placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' private lives had answered a pressing social need or was proportionate to the national security and public order aims pursued by the Government. Click here to read the press release.

Court of Appeal

Indirect discrimination & the 'opt out principle'

Copple & Ors v Littlewoods Plc & Ors [2011] EWCA Civ 1281 (08 November 2011)
The case concerned part-time workers (who were, in the main female) who by virtue of their part-time status were ineligible to join the respondent's pension scheme. It was accepted that as such the policy preventing membership of the scheme was in theory indirectly discriminatory. However, as the part-time workers concerned had no intention of joining the scheme, even if they were eligible, no loss flowed from the discrimination. In that situation it had become the established practice of the courts to award no remedy for such acts of discrimination.

The appellants argued that this approach was wrong and not in accordance with EU law. The Court of Appeal disagreed. Click here to read the full judgment.

To appeal or not to appeal a costs order, that is the question

Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 (03 November 2011)

With costs orders becoming more prevalent in the ET, here Mummery LJ helpfully restates some guiding principles when a party facing a cost order considers whether or not to appeal. Click here to read the judgment.

Employment Appeal Tribunal

Constructive unfair dismissal

Working Men's Club And Institute Union Ltd v Balls (Unfair Dismissal : Constructive dismissal) [2011] UKEAT 0119_11_0811 (8 November 2011)
The EAT found that the ET, despite some inadequacies in the way it expressed its reasons, was nonetheless entitled to find that the appellant's initiation, and subsequent conduct, of disciplinary proceedings against the claimant was so unreasonable as to constitute a fundamental breach of contract entitling him to resign and claim constructive dismissal; and (b) that the claimant had resigned in response to that breach. Click here to read the judgment.

The burden of proof in discrimination cases

Transport for London & Anor v Aderemi [2011] UKEAT 0006_11_0411 (4 November 2011)
The EAT took the opportunity to set out the steps a tribunal hearing a discrimination claim must undergo. First, the tribunal must identify the less favourable treatment complained of. Secondly the ET should then go onto examine how the claimant was treated as compared to a colleague or a hypothetical comparator. If there is evidence to support a prima facie case of less favourable treatment then the burden shifts to the respondent to disprove that such treatment was the result of discrimination on prohibited grounds Click here to read the judgment.

More constructive unfair dismissal

Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710 (27 October 2011)

This case is interesting because of the comments of Carnwath J in relation to the potential effects of the government's cuts to public funding. He said this at paragraph 59 of the judgment

"We make one further observation by way of postscript. In the context of the current debate about the future of legal aid, this case seems to us to provide a vivid illustration of the difficulties faced by litigants in person, and the importance of competent legal advice at the right stage. We do not know whether Mr Widders and Mrs Price had access to specialist legal advice at any stage. However, we find it difficult to believe that an experienced legal representative would have allowed the case to develop as it did. It seems most unfortunate that the case turned into such a prolonged battle before the Tribunal, which must have been painful for all those involved, and expensive in time and money. Many of their allegations were peripheral and others were exaggerated; the allegations of corruption were unsustainable. The emphasis on a long list of individual "detriments" distracted attention from the issues of substance. All these elements must have added considerably to the length of the case, and to the difficulty of the Tribunal in finding the wood for the trees. Provision of basic legal help to unrepresented litigants is important in the interests of the efficiency and economy of the justice system for the public, as much for its accessibility to the individual parties."

Click here to read the full judgment.

If it looks like bias ...

Ms U Bhardwaj v FDA & 3 Others UKEAT/0157/11/DA
The appellant brought claims in race discrimination and victimisation against her union, the FDA and five officers of that union in the ET. All of those claims were dismissed by the ET. On appeal to the EAT a number of grounds were argued on the appellants behalf. Only one ground alleging the appearance of bias was successful. Three of the five individuals proceeded against were lay members of the employment tribunals: two sat at London South and one was appointed during the proceedings to London Central where the full hearing was finally heard. In remitting the case to the ET for a full hearing, the EAT, among other directions, gave a direction that the case be listed in another region of the employment tribunals. Click here to read the full judgment.

Working Time Regulations

Mr D Joao v Jury's Hotel Management UK Ltd UKEAT/0210
The appellant was made to work nine consecutive nights in his position at the respondent hotel. When he complained about this rota, he was dismissed. Notwithstanding the fact that under the Working Time Regulations 1998 reg.11, such a shift pattern is lawful, the EAT held that the ET failed to consider whether the appellant reasonably believed the pattern to be unlawful. In doing so the ET wrongly concluded that, since it was not unlawful under the Regulations, no-one could think otherwise. The Appeal was allowed and remitted to fresh ET. Click here to read the judgment.

Notices & coming events

"Industrial action injunctions - Redressing the balance?"

The Employment Law Bar Association will be holding a lecture on 17 November 2011 at 6pm at the International Dispute Resolution Centre. The topic for discussion will be "Industrial action injunctions - Redressing the balance?" presented by Bruce Carr QC. Click here for more information.

Equal Pay

The Discrimination Law Association will be holding an evening Practitioner Group Meeting on Equal Pay on 23 November 2011 at 50-52 Chancery Lane. For more information go to the DLA website and log on.

"Compensation in discrimination claims - in light of Wardle v Calyon"

The Employment Lawyers Association will be hosting an evening lecture at the London offices of Herbert Smith on 24 November 2011 at 6.30 pm. The lecture will be delivered by Paul Nichols of 11 Kings Bench Walk. For more information click here.



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