Employment Law Bulletin - Issue 132 – 04 September 2012

Tuesday 4 September 2012

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Employment news

'Zero-hours' employment contracts

It is alleged today that some NHS Trusts are to employ highly skilled workers on what are colloquially known as "McDonald-style" contracts or zero-hour contracts. The contracts allow an employer to keep employees "on call" only paying them for the hours they work. Employers argue that this enables them to mobilize staff when needed at busy periods. But unions warn that these contracts are bad for work force morale given that there is no guarantee of work and there may be some risk to basic employment rights. Click here to read the full story.

Employment case law

Employment Appeal Tribunal

Strike out | Refusal of Claimant to be examined by Respondent's expert

Government Communications Headquarters v Mr A Bacchus [2012] UKEAT/0373/12
The Claimant claimed inter alia, disability discrimination arising out of anxiety and depression. However, he refused to co-operate with the obtaining of a psychiatric report by the Respondent and instead obtained his own report which, while not dealing with all of the relevant issues, supported his claims. The Tribunal determined that his refusal was unjustified, but declined to stay or strike out the claim, instead deciding that it would hear the claim with no expert psychiatric evidence on either side. The EAT held that deciding to proceed without medical evidence was an error of law. The Tribunal failed to apply the test as set out in Lane v Willis [1972] I WLR 333; had it done so it would have concluded that in the particular circumstances of the case, the Respondent could not properly prepare its case in the absence of expert evidence. Click here to read the full decision.

Practice & Procedure | Applications to amend claim form

Ms N Edwards v London Borough of Sutton [2012] UKEAT/0111/12
The Claimant made an application to amend her ET1. The application was refused by the Employment Judge, on the basis that the application involved the addition of new claims. The EAT held that in refusing the application, the Employment Judge fell into error. The Employment judge should have followed the well-established test set out in Selkent v More [1996] ICR 836 at 842, as this was an application concerning an amendment which was arguable, of substance and not clearly time barred. Click here to read the decision.

Race discrimination | Inferring discrimination

Birmingham City Council & Mrs S Semlali v Mrs P Millwood [2012] UKEAT/0564/11
A Tribunal, charged with consideration of a claim for race discrimination, which found as a matter of fact that a black employee had been treated less favourably than an Asian employee, needed to go further and identify what other facts, in addition to this preliminary finding, justified shifting the burden of proof to the Respondent. So the EAT held when allowing an appeal by the Respondents and remitting the case to the same Tribunal to be decided in light of the EAT's ruling. Click here to read the decision.

Continuing acts of discrimination| issue estoppel

Mr XX v UKBA [2012] UKEAT/0546/11
The Claimant brought claims for disability discrimination and victimisation. The EAT held that the Employment Tribunal was wrong first in holding that there was no continuing act at least during the three months prior to the presentation of the claim; and secondly in deciding that issue estoppel applied to the Claimant's case. The Claimant had presented a claim of disability discrimination against the same Respondent in 2005 based upon his dyslexia and dyspraxia. However, in the instant claim he was asserting disability by reason of dyslexia, dyspraxia and his depressive illness brought on or exacerbated by the alleged discriminatory treatment at the hands of the Respondent. The latter issue had formed no part of the 2005 claim and therefore issue estoppel did not apply. Click here to read the full decision.

Notices & coming events

The Institute of Employment Rights hold its conference "Employment Law Update" on 10 October 2012 with speakers from Thompsons, OH Parsons and Pattinson & Brewer among others. More details here.

 

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