Employment Law Bulletin - Issue 121 - 6 March 2012

Tuesday 6 March 2012

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Employment news

Review of employment rights for worker in small businesses
The government has delayed a review into the reduction of rights for those who work for companies whose workforce number 10 or under. The minister responsible for employment was due to announce the call for evidence his Tuesday, but this has been delayed amidst fears that the proposals would cause an uproar at the forthcoming Liberal Democrat party conference. Click here to read the news report.

Blacklisted building workers get their day in court
Workers in the building trade who have long thought themselves the victim of a form of vendetta due either to their trade union activities or having raised grievances about unsafe working conditions, have had their fears confirmed following the evidence of David Clancy given before the London Central Employment Tribunal hearing the case of Dave Smith. Mr Clancy, investigations manager at the Information Commissioner's Office told the tribunal he believed that some of the information in the files used to blacklist workers "could only be supplied by the police or the security services". David Renton of Garden Court Chambers represented Mr Smith. Click here to read the full story.

Domestic workers to be put at even more risk
In a move that is sure to make arguably the most vulnerable sector of the workforce in the UK - migrant domestic workers - even more open to abuse, the government is set to make changes to the immigration rules preventing such workers from transferring their Visa to another employer. Click here to read the news report.

Employment Case Law

Unfair dismissal | Reasonableness of dismissal

Samsung Electronics Ltd (UK) v Mr KMonte-D'Cruz EAT/0039/11
The claimant was dismissed for reasons of redundancy following a reorganisation, having been interviewed for, but not offered, an alternative job. The Tribunal held that the dismissal was unfair due to lack of consultation and in the respondent applying an unsatisfactory criteria in interviewing for the potential alternative role.
Allowing the appeal, the EAT decided a) that there was no basis for the finding of inadequate consultation; b) that the Tribunal's criticisms of the interview process for the alternative role were not such as to render the dismissal unfair and; c) that it had wrongly substituted its own judgment of the Claimant's suitability for the role. Click here to read the full judgment.

Striking out | dismissal

Abendshine & Ors v Sunderland City Council [2012] EAT/0414/11/JOJ (29 February 2012)
The claimants were among a large number of claims made against Sunderland City Council under the Equal Pay Act 1970. A number of the claimants had not named comparators in their original grievance but did so in their ET1. Their claims were struck by the Tribunal as claims that sought to rely on comparators other than those identified when setting out their grievances under the standard grievance procedure provided for by the Employment Act 2002. Langstaff J in a judgment upholding the claimants appeal said, among other things the following."We see the grievance and the Tribunal claim as addressing two separate matters. The latter, plainly, addresses the legal consequences of actions or omissions by an employer. The stating of a grievance is not properly to be seen as a step in litigation, albeit that in order to litigate that step had at first to be taken. It has a much broader function. The purpose of stating a grievance is, as the lay members are keen to emphasise, that of initiating discussion with the employer. Many matters so discussed will never have been heading for litigation, whatever the result of the discussion. Those that might have been may be headed off by discussion. That remains the position today, even after the 2002 Act ceasing to have force." Click here to read the full judgment.

Transfer of Undertakings | Economical technical or organisational reason

Meter U Ltd v Ackroyd & Ors [2012] EAT/0207/11/CEA (28 February 2012)

'Workforce' in Regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 does not include corporate franchisees. So the EAT ruled in allowing the appeal and setting aside the decision of the Tribunal below. The Tribunal erred in holding that the dismissal of employee meter readers transferred to the Respondent under TUPE was not for an economic, technical or organisational reason entailing changes in the workforce. Click here to read the judgment.

Trade Union Rights | Action short of dismissal

UNISON v Kelly & Ors [2012] EAT/0188/11/SM (22 February 2012)
The Respondents were members of Unison. The Tribunal found that they were unjustifiably disciplined by the union contrary to s.64 of the Trade Union and Labour Relations (Consolidation) Act 1992. They were each banned from holding office in the union for between three-five years. The EAT held that the restrictions on trade union discipline imposed by s.65(2)(c) did not amount to an unlawful contravention of Article 11 ECHR. Members of unions have a right to hold their unions to account for breaching union rules where the members act in good faith. Click here to read the full judgment.


Employment Litigation in the High Court
(Wednesday 7 March 2012)

The Employment Lawyers Association will be holding a one day course. The morning session is aimed at employment lawyers who are new to, or want to refresh their knowledge of, High Court litigation. The afternoon session will focus on injunctions, looking at High Court procedure in more detail and practical tactical considerations. Click here for more information and for how to book.

AGM & Annual Social Event
(Thursday 22 March 2012)

The Discrimination Law Association AGM and annual social event at Doughty Street Chambers, 54 Doughty Street, London WC1N 2LS. It starts at 6pm and following the AGM there will be drinks and nibbles. Go to the DLA website and log on for more details.

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