Employment Law Bulletin - Issue 117 - 10 January 2012

Tuesday 10 January 2012

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Employment news

From playground to workplace

Britons are among the most bullied workers in the world a survey carried out by the recruitment company Monster reveals. The survey questioned 16,517 workers over 53 countries and it found that 25% of British workers report being victims of bullying and cruel jibes at work. Those who complained of bullying also stated that they found the experience so upsetting that it dramatically affected their performance at work. Click here to read the news story.

Introduction of fees in the ET and EAT

The government has already announced their intention to introduce fees upon issuing claims in the ET and the EAT. The consultation has now opened seeking views from users of those tribunals as to the fee charging structures. The consultation closes on 6 March 2012. Click here to download the consultation documents.

More Consultation

The Government is seeking views as to the current regime on collective redundancies. Although the blurb for the consultation states, among other things, that the government wishes to explore the issues as they effect employees, it is clear that the reason d'être behind this particular consultation is to make the redundancy process easier for businesses. The closing date is 31 January 2012. Click here and have your say.

TUPE consultation

In an apparent response to businesses stating that the current TUPE Regulations appear to be "gold-plated" and "overly bureaucratic", the government seeks views on the effectiveness of the current regulations. It is stated that if the balance of responses call for possible changes to the regulations, there will be further consultation later this year. So watch this space for the consultation that will no doubt seek views on how to speed up TUPE transfers so as to assist business. Closing date is 31 January 2012 so click here to have your say.

Employment Case Law

Supreme Court

Loss arising from the unfair manner of a dismissal - breach of an express term

Edwards (Respondent) v Chesterfield Royal Hospital NHS Foundation Trust (Appellant) Botham (FC) (Respondent) v Ministry of Defence (Appellant)
The issue before the Court was whether, in circumstances where an express term as to a disciplinary procedure was breached by the employer, such a breach gives rise to a claim at common law for damages in the ordinary courts. The Court ruled that Parliament had decided to limit such claims by enacting what can now be found in section 98A of the ERA 1996. Therefore losses arising as a result of the manner of a dismissal are not recoverable, falling as they do within the so-called Johnson exception. Click here to read the full decision.

Employment Appeals Tribunal

Unfair dismissal - Reasonableness of dismissal

Yellow Pages Sales Ltd v Walsh [2011] EAT 0103/11
The issue raised by the appeals (three cases were heard together) was whether the ET erred in law by substituting its own views on the fairness of the dismissal for those of the employer. The majority decision of the ET in those cases was that the Claimant was unfairly dismissed. In dismissing the appeals, the EAT held that the ET in each case had not erred in law by substituting their own views on the fairness of the dismissal for those of the employer; but rather had quite properly substituted their decision for that of the employer. The decision is also useful as the EAT helpfully ploughs through and summarises the relevant case law on this topic. Click here to read the judgment.

TUPE transfers

Enterprise Management Services Ltd v Connect-Up Ltd & Ors [2011] EAT 0462/10
The issue before the employment judge, sitting alone at a PHR, was whether the employment of the individual claimants, members of the Trade Union Unison, also a claimant (with the exception of Mr Trout) had transferred from the First Respondent Enterprise Management Services Ltd to the Third Respondent Connect-Up Ltd under the provisions of regulation 3 of the TUPE Regulations 2006. The EAT held that the employment judge was entitled to find (a) that the activities carried out by outgoing contractor were not essentially or fundamentally the same as those carried out by the incoming contractor and (b) that there was fragmentation of the service after the putative transfer date such that no Service Provision Change (SPC) transfer took place. Click here to read the decision.

More TUPE...

Pannu & Ors v Geo W King Ltd & Ors [2011] EAT 0021/11
The appeal raised a question as to the proper meaning and effect of a SPC operating as a relevant transfer of employment in accordance with reg. 3(1)(b), read with reg. 3(3) and in particular reg. 3(3)(b) of the TUPE Regulations 2006. It fell to the EAT to decide whether ET was entitled to find that reg. 3(3)(b) exclusion (potential transferor's activities consisted wholly or mainly of the supply of goods rather than services) applied. The EAT in dismissing the appeals found that as a matter of law the ET was so entitled. Click here to read the decision.

Disability discrimination

Mr G Butler v (1) Mellons LTD (2) Mr G R Mellon EAT 0216/11
The ET had assumed that if it decided that there had been no discrimination by the respondent on disability grounds, it therefore followed that there had been no breach of the implied term of trust and confidence. In so doing the ET failed to apply separate tests for determining each, and thereby misunderstood the issues before it. The EAT remitted the case to the ET. Click here to read the decision.

Professor J Radford v Teeside University EAT 0216/11

An application for review was dismissed by an employment judge sitting alone under Employment Tribunal rule 35(3). The claimant's representative had misled the ET and the claimant, preventing her from making, or having made on her behalf, a renewed adjournment application whilst she was un-contactable abroad. The EAT allowed the appeal and remitted the case to a fresh ET for a review hearing. Click here to read the decision.

Notices & coming events

Compensation for Dismissal and Breach of Contract: In Search of Principle
The Industrial Law Society will be holding a lecture this Wednesday 11 January 2012 as part of their London evening meetings series. The lecture will and will be presented by Professor Hugh Collins of the London School of Economics. For further information about this and other events, click here.

The implications of Autoclenz v Belcher and other recent cases on employment status
The Employment Lawyers Association will be hosting an evening lecture today at 6pm entitled. The lecture will be held at the London offices of Linklaters at a cost of £35 plus VAT. Click here to download the booking form and for details of discounts.

 

 

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