Employment Law Bulletin - Issue 130 - 10 July 2012

Tuesday 10 July 2012

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Employment news

More employee ownership
The Nuttall Review of employee ownership is published this month and among its recommendations is the expansion of employee ownership in the UK economy. New figures showi that companies owned by their employees are growing 50% faster than the UK economy - at a rate of 1.1% compared to 0.7% for the wider economy. Click here to read the review.

Remploy workers plan to strike
Disabled workers at UK factories have voted to go on strike against plans to close their workplaces. Nearly 80% of members of trade union GMB employed by Remploy have voted for strike action. Click here to read the statement from the GMB Union. Click here for more information.

Employment case law


Equal treatment in employment and occupation

Hornfeldt v Posten Meddelande AB, [2012] EUECJ C-141/11 (05 July 2012)
Swedish law provides that an employee has the right to remain in employment until the end of the month in which he reaches the age of 67. This '67-year rule', constitutes a difference of treatment on grounds of age within the meaning of Article 6(1)(a) of Directive 2000/78. However, as the measure is objectively and reasonably justified by a legitimate aim relating to employment policy and labour-market policy and constitutes an appropriate and necessary means by which to achieve that aim, there is no breach of the Directive. Click here to read the judgment.

Court of Appeal

Unfair dismissal | band of reasonable responses

Graham v The Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903 (05 July 2012)
When charged with the task of reviewing a decision of the employment tribunal on an appeal alleging an error of law, the EAT must take care not to retry the case on the facts or make its own assessment of matters in place of those made by the ET. In doing so the EAT fell into error. So held the Court of Appeal (Aikens LJ) in overturning the decision of the EAT and upholding that of the employment tribunal. Although the judgment ultimately reviews and reaffirms the decisions in London Ambulance Service NHS Trust v Small [2009] IRLR 563 and Orr v Milton Keynes Council [2011] ICR 704, it is of interest perhaps because the Court specifically approved the employment tribunal's finding that the respondent's decision not to suspend the claimant but rather deploy her elsewhere on similar duties pending an investigation, did not 'sit well' with the respondent's assertion that they had lost trust and confidence in the claimant. Click here to read the full judgment.

Breach of contract | fiduciary duty of loyalty

Ranson v Customer Systems Plc [2012] EWCA Civ 841 (27 June 2012)
The Court of Appeal (Lewison LJ) in allowing the appeal against the decision that Mr Ranson was in breach of both a contractual obligation of fidelity and a fiduciary duty of loyalty, held that the starting point for determining whether an employee owed a fiduciary duty to his or her employer, and if so, what duty, is the contract of employment. An employee has an obligation of fidelity towards his employer. If the obligation is not express, it will invariably be implied. But not every contract of employment gives rise to a fiduciary relationship. The hallmark of a fiduciary is a single-minded duty of loyalty. Generally speaking, such a duty is not a feature of an employment relationship. Click here to read the full facts and the judgment.

Employment Appeal Tribunal

Disability discrimination | Effective date of termination

Olenloa v North West London Hospitals NHS Trust [2012] UKEAT 0599/11/2906 (29 June 2012)
The EAT found that the employment judge had erred in failing to make findings of fact about the nature of any adjustments required and whether the claimant would have been able to remain or return to work if such adjustments had been made. Such findings were necessary to determine whether the complaints of failure to make reasonable adjustments were made in time and if not, whether it was just and equitable to extend time. The case was remitted to the ET for a full consideration of the facts. Click here to read the judgment.

Reviews | Factual finding of forgery

Mr O B Ogedegbe v Stag Security Service LTD UKEAT/0001/12/ (14/05/2012)
The claimant applied for a review under rule 35(3) of the Employment Tribunal Rules of Procedure 2004 of a judgment dated 2 November 2011, principally on the grounds of fresh evidence. The application was refused, as was the application to extend time for making it. The majority of the decision was upheld. However the employment judge's refusal of one aspect of the application on the basis that the claimant had supported it with forged documents was overturned. The EAT stated that it was not appropriate, upon preliminary consideration of an application under rule 35(3), for an employment judge to decide on paper a disputed question of fact as to whether documents were forged. An allegation of such seriousness ought to have been put specifically to the claimant before it was upheld. Click here to read the judgment.

Litigant in person | Costs

Ms L Boras v Hollyland Pitta Bakery & Others UKEAT/0523/11 (19/03/2012)
The claimant represented herself in a claim for direct sex discrimination and victimisation against her employers. The Employment Tribunal decided that all of her complaints were untrue. They subsequently ordered her to pay the respondent's costs, principally on the basis that the claim was misconceived and so had no reasonable prospect of success. They had concluded that the claimant had not deliberately lied but that, for whatever reason, her perception of reality was damaged and wholly unreliable. The EAT upheld the tribunals order for costs. Click here to read the judgment

Employment Law Events

Concurrent jurisdictions: strategy, stays and stifling: Halstead v Paymentshield
11 July 2012 at 6.30pm

The ELA are to hold an evening session. The talk will be held at the Mermaid Conference and Events Centre, Puddle Dock, Blackfriars, London, EC4V 3DB. The speaker will be Richard Leiper, of 11 KBW. The talk is accredited with 1.5 CPD hours. Click here for further information.



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