Employment Law Bulletin - Issue 79 - 7 May 2010

Friday 7 May 2010

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Court of Appeal

Employment status

Launahurst Ltd v Larner [2010] EWCA Civ 334
The Employment Tribunal had erred in finding that the contract between the parties was a sham and in disregarding its provisions. On the evidence the only reasonable conclusion was that the Claimant was a sub-contractor, not an employee.
For the full judgement, click here.

Age discrimination

Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419
The Defendant introduced a new pay structure the highest grade of which required a law degree or similar. The claimant who was close to retirement age at the time argued that this put those of his age group at a "particular disadvantage" in comparison with younger colleagues as there was insufficient time before his retirement at 65 to complete a law degree course and thus achieve re-grading. The Court of Appeal agreed with the EAT that there was no age discrimination. The requirement was applied to all alike and that "disadvantage" suffered was the result of the fact of retirement, not of the age of the persons in the group.
For the full judgement, click here.

Continuous act

Aziz v First Division Association (FDA) [2010] EWCA Civ 304
When assessing whether a continuous act exists over a period of time, whether the same individuals or different individuals were involved is a relevant factor but not a conclusive factor.
For the full judgement, click here.

Religious discrimination

McFarlane v Relate Avon Ltd [2010] EWCA Civ B1
A Relate counsellor who was a Christian and held the view that same-sex sexual activity was sinful was not discriminated against on the grounds of religious belief when he was dismissed for failing comply with its Equal Opportunities policy and Professional Ethics policy in relation to work with same-sex couples and same-sex sexual activities. London Borough of Islington v Ladele [2010] IRLR 211 applied and it had not been decided per incuriam. The Court of Appeal dismissed a renewed application for permission to appeal.
For the full judgement, click here.

Employment Appeal Tribunal

Acceptance of claims

May v Greenwich Council UKEAT/0102/10/LA
Where the contents of a claim form are illegible then the relevant details required under Rule 3(2) have not been provided and the claim, or the illegible parts of if, may therefore be rejected. Where the required details are legible the Employment Tribunal must accept the entire claim. Where part of a claim is illegible the Employment Tribunal should not to refuse to accept it in circumstances where the refusal in effect precludes a Claimant from presenting a more readable copy without having to apply for an extension of time to do so. It should instead require the Claimant to provide a more readable copy within a defined period, and if necessary to impose sanctions on his failure to do so.
For the full judgement, click here.

Statutory dismissal procedure

Dogan v London Borough of Greenwich UKEAT/0525/09/LA
The Employment Tribunal was right to hold that the statutory dismissal procedure was completed although the Claimant was not present at the appeal meeting. The word "meeting" is a "hearing" for the purposes of sections 13(4) and (5) Employment Relations Act 1999. Since a hearing can be unilateral as well as bilateral the refusal of the Claimant to attend the disciplinary appeal due to unreasonable delay did not vitiate the completion of the statutory procedures. It is implicit in the procedures that there can be circumstances where there is no attendance, such as where the employee does not take reasonable steps to attend, and yet the hearing is not aborted by this failure. The delay did not prevent the completion of the procedure and thus no automatic unfair dismissal arose.
For the full judgement, click here.

Statutory grievance procedure

Goodman & ors v Shropshire Unison & ors UKEAT/0004/10/RN
Where a Claimant raises a grievance which is accepted to be a protected disclosure, and then suffers further action, it is not necessary to raise a subsequent grievance when the substance of the grievance has already been articulated.
For the full judgement, click here.

Employment status

Ashan v Westmead Business Group Ltd UKEAT/0480/09/RN
In the circumstances, and where all the documentary evidence suggested a contract of employment, post-termination correspondence, whatever the reason for it, did not negate that relationship.
For the full judgement, click here.

Governing Body of Abergwynfi Infants School & Neath Port Talbot County Borough Council v Jones UKEAT/0083/10/ZT
Considering the relevant education legislation, where a teacher had been giving notice of termination of her employment by the Governing Body, it had potential liability for a claim for liability for unfair dismissal. However when the Governing Body was dissolved on the closure of the school, the liability, if any, had transferred to the Local Education Authority.
For the full judgement, click here.

Terms and conditions of employment

Southern Cross Healthcare Company Ltd v Perkins & ors UKEAT/0276/09/JOJ
Where a Claimant is unrepresented and the factual basis of the complaint is not altered, it is open to the Employment Tribunal to find a different juridical basis for that complaint, always providing that no prejudice is created as a result. In the present case the Claimants framed their claim in terms of bank holidays but their fundamental grievance was that they thought they were entitled to five days of long service holiday over and above any other entitlement. The Employment Tribunal had not erred in analysing the claim under sections 11 and 12 Employment Rights Act 1996 ("ERA"), although it had not expressed its decision in those terms. In deciding the questions arising in the context of section 11(2) ERA, the Employment Tribunal is allowed to construe contracts of employment.
For the full judgement, click here.


Ward Hadaway Solictors v Capsticks Solicitors LLP & ors UKEAT/0471/09/SM
There had been no change of service provision under TUPE Regulations 2006 where the Nursing and Midwifery Council ("the NMC") terminated its contract with one firm of solicitors and engaged in a contract with another after a competitive tendering process. The contract with the First Respondent was to be the recipient of regulatory work as a member of the NMC's panel of solicitors, but to whom there was no obligation to provide work. While at the time the contract ended the First Respondent had an organised group of workers engaged in an activity on behalf of NMC, there was no transfer of work in progress and the right to receive future referrals was not part of the "activities carried out" on the NMC's behalf by the group. In any event the work done by the new contract holder was of a different nature.
For the full judgement, click here.

Unfair dismissal

Milton Keynes General NHS Trust v Southcote-Want UKEAT/0270/09/CEA
Although the Employment Tribunal correctly directed itself as to the law it inadmissibly substituted its own view of the facts for those of the employer. It failed to consider the evidence as a whole but examined the allegations of misconduct against the Claimant separately and in isolation from other evidence which may have provided a context.
For the full judgement, click here.

Dr Burton & ors v Curry UKEAT/0174/09/SM
In considering constructive dismissal, the Employment Tribunal erred in saying that, even if there had been a breach of an express term, it would not be a fundamental breach if the Respondent were acting reasonably. A sufficiently serious breach of an express term is a repudiation of the contract, however reasonable it may be, and if the employer wants to rely on reasonableness it can only do so when considering whether the "dismissal" was unfair. Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 considered. However the error did not undermine its decision that the Claimant had been unfairly dismissed.
For the full judgement, click here.

M&L Sheet Metals Ltd v Willis UKEAT/0474/09/RN
Applying Buckland, if an employer is in fundamental breach of contract by failing to deal with a grievance properly, the fact that the appeal process is carried out reasonably does not cure the breach so as to preclude the Claimant from relying upon it.
For the full judgement, click here.

Southern v Wadacre Ltd t/a Wadacer Farm Day Nursery UKEAT/0380/09/JOJ
Even if an Employment Tribunal decides a case on one basis, it should still give a decision on other important disputed issues in the case. Firstly it is a matter of common justice and secondly as if there is an appeal its lack of findings on other issues comes into sharp relief. In the present case the Employment Tribunal had failed to determine whether individually or collectively the matters raised by the Claimant amounted to a fundamental breach of contract. Instead the case was decided on the issue of acceptance of breaches alone, however the decision was unreasoned.
For the full judgement, click here.


Goode v Marks & Spencer UKEAT/0442/09/DM
The Employment Tribunal had not erred in finding that information the Claimant had given to a national newspaper about changes to the employer's redundancy payment scheme was not a qualifying disclosure since he could not reasonably have believed that he had a contractual entitlement to any discretionary redundancy payment. In any event, none of the information disclosed tended to show that there was likely to be a breach of any obligation. Further, the Claimant had not previously made a disclosure of substantially the same information to his employer. He had merely expressed his opinion about the proposals.
For the full judgement, click here.

BP Plc v Elstone UKEAT/0141/09/DM
A worker may complain under section 47B ERA of suffering a detriment from his current employer on the ground that he had made a protected disclosure even where that disclosure had been made while employed by a previous employer. The wording of the statute permitted this and it was necessary to apply a purposive approach in seeking to ensure proper protection for the employee. However a worker must be a worker at the time the disclosure is made.
For the full judgement, click here.

Disability discrimination

Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09/CEA
The EAT confirmed on its review of the case-law that to create a new job for a disabled employee, if the particular facts of the case support such a finding, could potentially be a reasonable adjustment. Similarly, as in the present case, swapping postholders within an organisation could also be a reasonable adjustment. Further, since the duty to make a reasonable adjustment by transferring the Claimant police officer to a staff role arose before he retired on medical grounds, his retirement did not end that duty and therefore the Tribunal was not precluded from considering whether it would have been reasonable to immediately re-employ him in a civilian support staff role. However there was insufficient reasoning on this part of the decision. The EAT also held that where there has been no consultation on what reasonable adjustments could be made, when the Tribunal subsequently identifies such adjustments it is not necessary to inquire into would have happened if there had been consultation as this would necessarily involve the Tribunal in speculation.
For the full judgement, click here.

Sex discrimination - burden of proof

Pothecary Witham Weld v Bullimore UKEAT/0158/09/JOJ
The reverse burden of proof provisions of s63A Sex Discrimination Act 1975 apply to victimisation in that Act. The ratio of Oyarce v Cheshire County Council [2008] ICR 1179 is peculiar to the Race Relations Act 1976 and s63A has different wording. Section 63A is not ultra vires, Oakley Inc v Animal Ltd [2006] Ch 337 applied.
For the full judgement, click here.


Ward v Ashkenazi UKEAT/0416/09/JOJ
The Employment Tribunal had erred in failing to take into account in its assessment of compensation for unfair dismissal the benefits of food of and accommodation that the Claimant had received in her position as housekeeper. It has also erred in not awarding the statutory uplift for failure to follow the statutory disciplinary procedures. As there were no exceptional circumstances the uplift would be 50%.
For the full judgement, click here.

Langston v Department for Business Enterprise and Regulatory Reform UKEAT/0534/09/ZT
The Employment Tribunal had erred in making a 100% deduction in the basic and compensatory award. It had to decide whether the behaviour contributed to the Claimant's dismissal was "culpable or blameworthy" and had failed to consider the medical evidence that it was possibly due to an acute transient psychotic disorder secondary to stress at work.
For the full judgement, click here.

Taylor v XLN Telecom & ors UKEAT/0385/09/ZT
In a claim for race discrimination, the Clamant was entitled to recover for any injury to feelings and personal injury attributable to the act complained of, in this case the dismissal, without the need to attribute the injury specifically to knowledge of the element of discrimination, in this case victimisation. Skyrail Oceanic Ltd v Coleman [1981] ICR 864 was not authority to the contrary.
For the full judgement, click here.


Equality Act 2010

The Equality Act 2010 received Royal Assent on 8 April 2010. The main provisions come into force in October 2010.
For a full copy of the Act, click here.

Paternity Leave

The Additional Paternity Leave Regulations 2010 came into force on 6 April 2010 with effect in relation to children whose expected week of birth (or matching for adoption) is on or after 3 April 2011. The new regulations extend the entitlement of to up to six months' additional paternity leave if the mother or primary adopter has returned to work.
For a full copy of the Regulations, click here.


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