Employment Law Bulletin - Issue 122 - 20 March 2012

Tuesday 20 March 2012

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Employment news

High Noon for NHS
UNISON regions and branches all over the country took to the streets this weekend, in a last-ditch effort to defeat the government's destructive health and social care bill. Click here to read more.

Minimum wage frozen for young people
Business Secretary, Vince Cable announced today that the adult rate of the minimum wage is to rise by 11p to £6.19 an hour from October. However, the rates for younger workers will be frozen at £4.98 for 18 to 20-year-olds and £3.68 for 16 to 17-year-olds. Apprentices will enjoy a 5p increase in their minimum wage to £2.65 an hour. Click here to read the full story.


Dealing with dismissal
The government is seeking evidence on the current dismissal processes, including the Acas Code of Practice on Discipline and Grievance and the concept of 'compensated no fault dismissal' for micro businesses. The closing date for submissions is 08 Jun 2012. Click here to download the consultation document and have your say.

Consultations awaiting a response
The government response to consultations on collective redundancy consultation rules and the effectiveness of the 2006 TUPE Regulations are still awaited. Click here and here, respectively for more information.

Employment case law

Court of Appeal

Res Judicata | abuse of process

Bon Groundwork Ltd v Foster [2012] EWCA Civ 252 (13 March 2012)
The claimant (a litigant in person) was 78 and employed as a carpenter by the respondent. He was laid off without pay by the Respondent on 15 April 2009. On 29 April, the respondent decided to dismiss the claimant. The dismissal was said to be by reason of retirement. The claimant submitted a claim form to the Tribunal. He sought, amongst other matters, a redundancy payment. The claims were struck out on two bases; res judicata, having been effectively determined by the tribunal in an earlier application and abuse of process. The claimant appealed to the EAT and was successful in reinstating his claims. The respondent then appealed to the Court of Appeal. Dismissing the appeal Elias LJ said this:

"I consider that there could be a real injustice to Mr Foster if he were not permitted to pursue the general unfair dismissal claims. He wishes to contend, for example, that if the dismissal was by reason of retirement, there was an unfair dismissal because relevant statutory procedures were not complied with. It is surely not an abuse of process to allow him to pursue that claim, particularly since on any view the question whether dismissal was by reason of retirement was never the central question before the Salter Tribunal and there was no reason why he should have assumed that there would be a finding of that nature."
Click here to read the full judgment.

Employment Appeal Tribunal

Disability discrimination | fresh medical evidence

F v Cleveland Police Authority [2012] EAT 0586/11/1403 (14 March 2012)
The claimant commenced employment with the respondent on 4 February 2004. She was a civilian worker engaged on administrative duties. She was dismissed on grounds of alleged misconduct in February 2010. At the PHR the Employment Tribunal had three combined forms ET1 before them. A fourth claim was dismissed.
The combined claims raised alleged failures to make reasonable adjustments during the period May 2006 - February 2010; victimisation contrary to s.55 DDA; and that her dismissal was unfair, directly discriminatory and a failure to make reasonable adjustments. Issue was taken by the respondent as to whether or not the Claimant was disabled.
Her claims for disability discrimination were dismissed principally due to lack of medical evidence during a 4 year period when the claimant was away studying at university. The claimant was successful in part in her application before the EAT to admit fresh evidence. Evidence of the medical records were admitted for the relevant period as, in the opinion of the EAT, the claimant had established that she had pursued her full medical records prior to the PHR with reasonable diligence. The failure to produce the full records lay fairly and squarely with the surgery administration.
The EAT also considered whether the "substantiality threshold" in s.1 DDA, is only to be applied to the ability to carry out normal day to day activities and not to the effect on the other 8 capacities listed at para. 4(1) of Schedule 1 to the Act. Determination of the disability issue was remitted to the same tribunal for reconsideration. Click here to read the full judgment.

Unfair dismissal | Reasonableness of decision to dismiss

Daughters v Aqua Financial Solutions Ltd [2012] UKEAT 0149/11/1403 (14 March 2012)
The claimant was dismissed for behaviour in a bar while drinking with clients. She apologised to the clients the following morning. The Employment Tribunal dismissed claims of unfair dismissal and wrongful dismissal. The claimant appealed. Her appeal allowed on the grounds that (a) contrary to the Tribunal's finding there were serious disputes of fact which the disciplinary hearing and the appeal did not attempt to resolve (b) the Tribunal wrongly discounted the pressure brought by the respondent's chairman and majority shareholder for the claimant to be dismissed, and (c) there was no attempt to address the third limb of Burchell except by assertion. Click here to read the judgment.

Sex discrimination | Marital status

Hawkins v Atex Group Ltd & Ors [2011] UKEAT 0302/11/1303 (13 March 2012)
The claimant was married to the Chief Executive (H) of the first respondent (R1). She had for some time worked for R1 as a contractor. R1 asserted that their Chairman told H that from the end of 2009 he should not employ any member of his family in the business, because of concerns about perceived conflicts of interest and nepotism. The claimant started work with R1 at the beginning of 2010. Prior to the claimant's employment, her daughter became an employee in late 2009. The claimant and her daughter were dismissed on the ground that her employment was in breach of the instruction to H. Her claim of discrimination on the ground that she was married, under section 3 of the Sex Discrimination Act 1975, was struck out by an Employment Judge on the basis that it had no reasonable prospect of success.

In dismissing the appeal, the EAT held that less favourable treatment on the basis that the claimant is married to a particular person properly falls within section 3, but only if the ground for the treatment is, specifically, that they are married, rather than only that they are in a close relationship which happens to take the form of marriage. Click here to read the full judgment.

Transfer of undertakings | change of location | constructive dismissal

Abellio London Ltd (Formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and others EAT/0631/11
The claimants worked as bus drivers for Centrewest London Buses Ltd (the transferor). They worked mostly on the 414 bus route, which was operated by the transferor under a contract with Transport for London (TfL). The employees were based at the transferor's Westbourne Park garage in West London.
On 21 November 2009, the TfL contract to run the 414 bus was transferred to Abellio London Ltd (the transferee). The transfer of the contract meant that the transferee would run the 414 bus route from its garage in Battersea, South-West London. The transfer meant that the employees' place of work would change. The EAT held that the claimants who resigned after being faced with a change of place of work to a different part of London because of a TUPE transfer were constructively dismissed. Click here to upload the judgment.

Race discrimination | Disability discrimination

Royal Bank Of Scotland Plc v Morris [2011] UKEAT 0436/10/1910 (12 March 2012)
The claimant successfully brought claims against the respondent for unfair constructive dismissal and for race and disability discrimination (failure to make reasonable adjustments). The EAT (Underhill J) in upholding the appeal (in part) said, among other things the following.

"We wish to emphasise, however, that Mr Arnett's comment was, as acts of discrimination go, by no means grave. It was a single tactless remark, betraying an almost certainly unconscious racial stereotype of a rather subtle kind. Although we can fully understand why the Claimant was upset by it, it was not otherwise offensive. There is no suggestion of any broader discriminatory context in the relationship of the Claimant and Mr Arnett or indeed in his relationship with colleagues and managers more widely. We see a parallel with the case of Richmond Pharmaceuticals Ltd v Dhaliwal [2009] ICR 724, where the employment tribunal found a similarly stereotypical comment to constitute harassment but made a very modest award of compensation. In the great majority of cases we would hope and expect that a comment of this kind, even if formally falling within the terms of the Act, would never form the subject of a tribunal claim and would be dealt with (assuming the employee wanted it dealt with at all) by an informal apology or through the grievance procedure. It is a matter of great regret that what Mr Arnett said has spawned these enormously lengthy and damaging proceedings. It is not for us to attribute blame for that outcome, but we have to say that our strong impression is that the formalism and process-driven approach shown by those operating RBS's elaborate grievance procedures may have got in the way of a more humane and straightforward resolution."
Click here to read the full judgment.


Some Compensation Conundrums
(Tuesday 20 March 2012)

The Industrial Law Society will be holding an evening meeting tonight. The talk will be delivered by Mr Justice Underhill, Royal Courts of Justice, (former President, Employment Appeal Tribunal) and will take place at the Royal College of Surgeons. For more details click here.

AGM & Annual Social Event
(Thursday 22 March 2012)

The Discrimination Law Association will be holding their AGM & 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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