Employment Law Bulletin - Issue 118 - 27 January 2012

Friday 27 January 2012

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Employment news

TUPE & Redundancy consultations - 5 days to go

The closing date for both of these consultations reported more fully in the last bulletin is 31 January 2012. Click here and have your say about TUPE and here for redundancy.

Employment Case Law

Employment Appeal Tribunal

When to adjourn

O' Cathail v Transport For London, (13 January 2012)
The Appellant sought an adjournment of the full hearing on the grounds of his ill-health. He submitted to the ET in support of his application, a medical certificate stating that he was unfit to attend the hearing due to respiratory illness. The ET refused to adjourn and heard the claim in his absence. The EAT held that the tribunal's refusal to adjourn was wrong in law. Click here to read the judgment.

Disclosure of documents outside the UK

Weatherford UK Ltd v Mr Charles Forbes, EATS/0038/11/BI
The claimant applied under rule 10 of the 2004 Rules at a PHR for disclosure of certain documents created during the course of an investigation instigated by the respondent. Although the claimant had been subject to interview in the UK, the lawyers who interviewed him, and the documents sought, were in the US. The employment judge acceded to the claimant's application. The EAT overuled the ET's decision holding that orders under rule 10 were limited to documents within the UK. Click here to read the judgment.

Redundancy - suitable alternative employment

Mrs S B Readman v Devon Primary Care Trust, EAT/0116/11/ZT
It fell to the EAT to consider whether, on the particular facts of this case, the claimant had unreasonably refused an offer of suitable alternative employment in a situation where she was under notice of redudnancy. The EAT held that refusing an offer of alternative employement on the basis of a desire to discontinue working in a hospital setting was, on the particular facts of this case, reasonable. Click here to read the judgment.

Applications for deposit orders

Mr R Sharma v Newham College, Nottingham, EAT/0287/11/LA
When considering an application for a deposit order under rule 20 of the 2004 Rules, the ET must take the same approach it would adopt when considering an application to strike out a claim. In a case where there was an underlying factual dispute, the EAT held that the employment judge had adopted the wrong approach in relying solely on the contents of contemporaneous correspondence which were inconsistent with the claimant's version of events. Click here to read the judgment.

The need to give full reasons

Mr N Mustafa v Guy's & St Thomas NHS Foundation Trust, EAT/0516/11/CEA
The ET had struck out claims made for disability discrimination and unfair dismissal for non compliance with an unless order for further and better particulars. The Employment Judge had failed sufficiently to articulate his reasoning so as to reflect the now settled state of the legal tests and approach to the issues raised by the claims. The decision of the ET was overturned and remitted to a differently constituted Employment Tribunal for determination. Click here to read the full judgment.

Jurisdiction -whether contract of employment established

G E Caledonian Ltd v Mr T J McCandliss, EATS/0069/10/BI
The ET erred in law in finding that the claimant, a former apprentice of the respondent, who had been sponsored by them to attend a university course, was employed under a contract of employment. After taking up the sponsored university place the claimant dropped out of his studies. The respondent gave the claimant the option of returning to university or commencing an internship with them. The claimant refused both options and asked instead for employment with the respondent company. The respondent refused and the claimant successfully brought claims for unfair dismissal. In overturning the decision of the ET, the EAT held that the Tribunal had erred in law. The Claimant was not employed under a contract of employment and had, accordingly, no rights under s.94 of the Employment Rights Act 1996. Click here to read the judgment.

Sex discrimination- Vicarious liability

Commissioner of Police of the Metropolis v Ms N Weeks, EAT/0130/11/JOJ
The ET was correct to find that the Commissioner of the Metropolitan Police is responsible for the acts of sex discrimination by an officer of the City of London Police who line managed the claimant, a civilian employee of the Commissioner. Click here to read the judgment.




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