Employment Law Bulletin - Issue 80 - 26 May 2010

Wednesday 26 May 2010

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Court of Appeal

National security

Home Office v Tariq [2010] EWCA Civ 462
The procedure for national security cases prescribed in the Employment Tribunals Rules of Procedure 2004 and the Employment Tribunals (National Security) Rules of Procedure 2004 which allows closed material is not in breach of EU law or Article 6 ECHR. However Secretary of State for the Home Department v AF (No.3) [2009] UKHL 28 applies in this context so as to require the Respondent to provide a gist of the closed material to the Claimant and his legal representatives in the proceedings.
For the full judgement, click here.

Contract worker

Leeds City Council v Woodhouse & Anor [2010] EWCA Civ 410
The Respondent had created an "arms-length management organisation" ("ALMO") to carry out management functions for its residential properties. On its creation staff who had previously carried out their duties as employees of the Respondent were transferred to the ALMO. The Respondent was the ALMO's only customer, it was a wholly-owned subsidiary, and existed only in order to provide management services to the Respondent. Under the management agreement it was obliged to employ staff to carry out that work. The Court of Appeal held that the Employment Tribunal was therefore right to find that everything done by the Claimant was done not only for the ALMO but also for the Respondent and that the ALMO supplied workers to it pursuant to the contract. In the circumstances therefore, the Respondent was the principal and the Claimant a contract worker under s.7 Race Relations Act 1976.
For the full judgement, click here.

Unfair dismissal

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522
The Employment Tribunal had not erred in finding the dismissal unfair due to an inadequate investigation. What is a reasonable investigation into alleged misconduct must take into account the seriousness of the consequences of dismissal, as in this case the loss of career and deportation. A v B [2003] IRLR 405 applied. Where an employer is investigating misconduct and the employee, and the only witnesses have conflicting accounts of the incident, it does not have to come down on one side or the other. It will be proper in appropriate circumstances to say that it is not satisfied that it can resolve the conflict of evidence and accordingly does not find the case proved.
For the full judgement, click here.

Protected disclosure

Akintola v Capita Symonds Ltd [2010] EWCA Civ 405
With a litigant in person, additional responsibility falls on the Employment Tribunal to clarify exactly what is being alleged and to ensure, at the start of the hearing, that the parties know what the issues are and what ground is to be covered. Assuming that the issue of a protected disclosure was before the Employment Tribunal and it could be made out, there was no evidence that the Claimant had suffered any detriment as a result.
For the full judgement, click here.

Equal Pay

Gibson & Ors v Sheffield City Council [2010] EWCA Civ 63
The Employment Tribunal had erred in finding that a productivity bonus scheme was properly applied to male street cleaners and gardeners but was not appropriate for female care workers and therefore despite the pay difference, which disadvantaged a substantially higher proportion of women, the difference was not related to sex and therefore no obligation to objectively justify the disparity arose. The Court of Appeal held that the statistics showed the effect of the bonus scheme was clearly discriminatory and therefore had to be objectively justified. The issue was indirect and not direct discrimination. Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124 applied but could be distinguished on the facts.
For the full judgement, click here.

Employment Appeal Tribunal


Kotecha v Insurety plc t/a Capital Health Care & ors UKEAT/0537/09/JOJ
The Employment Tribunal had not erred in refusing the Claimant's request for an adjournment during proceedings due to ill health. The Claimant was not only able to be present at the hearing but also in the opinion of the Employment Tribunal, he had the mental capacity to act and he had presented his application eloquently.
For the full judgement, click here.

Unfair dismissal

London Borough of Brent v Fuller UKEAT/0453/09/JOJ
The Employment Tribunal had erred in criticising the Respondent for paying attention to an earlier incident of a similar nature for which the Claimant had not been disciplined. The earlier incident was part of the background to the dismissal which the Respondent was entitled to take into account. The Employment Tribunal had impermissibly substituted its judgment for that of the Respondent as to the seriousness of the Claimant's conduct. What is proper for child protection are matters for the management of specialist care establishments.
For the full judgement, click here.

Secretary of State for Justice v Mansfield UKEAT/0539/09/RN
Where a police investigation is on-going at the time of disciplinary proceedings, the employer has a wide discretion as to whether to continue or postpone the disciplinary hearing. In this case, the Employment Tribunal had erred in holding that the decision to postpone pending the criminal proceedings had caused unjustifiable delay. It also impermissibly substituted its view on whether the Respondent had a genuine belief in the misconduct complained of.
For the full judgement, click here.

Mitie Security (London) Ltd v Ibrahim UKEAT/0067/10/ZT
There had been no dismissal were the Respondent merely gave a warning to the Claimant security guard that if no alternative employment was found for him in the next four weeks the Respondent might then be in the position of having to give him notice of termination. In fact the Respondent subsequently told the Claimant it would look for alternative employment on another site for the Claimant and until then he would not be paid. There was therefore no ascertainable effective date of termination.
For the full judgement, click here.

Lawless v Print Plus UKEAT/0333/09/JOJ
The Employment Tribunal had erred in awarding only the minimum uplift of 10% for the failure to follow the statutory disciplinary procedures. In the present case, given the wholesale failure to apply the procedures, aggravated by the deliberate and offensively phrased refusal to conduct appeal, the award should have been near the top of the scale. The factors upon which the Employment Tribunal relied were not capable of justifying its refusal to award more than 10%. A figure of 40% was substituted.
For the full judgement, click here.

Disability discrimination

Tucker v Partnership in Care Ltd UKEAT/0455/09/JOJ
The Employment Tribunal had not erred deciding the Claimant's claim only on the basis of the detriment of dismissal. While there had been reference to failures to make reasonable adjustments in the claim form, this was not framed as a free-standing issue to be determined at the PHR. Although the issue was expanded on in the witness statements, in the circumstances it was not incumbent upon the Employment Tribunal to identify it as a separate claim without clarification from the Claimant.
For the full judgement, click here.

London Borough of Redbridge v Baynes UKEAT/0293/09/LA
The Employment Tribunal erred in finding that the Claimant was disabled in the face of the Claimant's assertions that she was not disabled and in the absence of any medical evidence. The Claimant was not allowed to withdraw the concession.
For the full judgement, click here.

Race discrimination

UPS Ltd v Sammakia UKEAT/0199/09/SM
The Employment Tribunal had erred in finding the Respondent liable for racial harassment of the Claimant by its employees when his claims were only against management and their handling of the matters, and no grievances had been made about co-workers.
For the full judgement, click here.

Sex discrimination

Munchkins Restaurant & Moss v Karmazyn & ors UKEAT/0359/09/LA
In the circumstances, the Employment Tribunal had not erred in dealing with the issue of whether there was a continuing act at the remedies hearing. Although a matter of jurisdiction, it had been raised in written submissions by the Claimant but not the Respondent. There was no injustice by allowing it to be dealt with in such a practical way. The Employment Tribunal had not erred in failing to give reasons for its decision to make liability joint and several as the reason was obvious. The Second Defendant was in effect the company in relation to the behaviour towards the Claimants. Further, even thought the Claimants had been employed for different lengths of time, there was no error in awarding each one the same amount for injury to feelings as the reasons were explained. However the Employment Tribunal had failed to give adequate reasons for the award of aggravated damages on the basis of the behaviour of the Respondents' representative.
For the full judgement, click here.

Equal pay

City of Edinburgh Council v Wilkinson & ors UKEATS/0002/09/BI
The Council was prima facie a single establishment unless the facts demonstrated otherwise. In this case the Claimants were employed in the same establishment as their male comparators, even though most of them worked in different departments to their comparators. It was doubtful that "same service" under Article 141 as per Defrenne was a separate concept distinct from "establishment". Further and in any event the Claimants and their comparators were employed under the same terms and conditions, the new "Red Book", despite the fact that not all of its terms had been brought into effect. When deciding whether pay differences are attributable to a single source for the purposes of Article 141, the issue is who is responsible for perpetuating, rather than creating, the inequality. In a case where Claimants and their comparators are not employed on the same common terms and conditions it is not necessary to establish, for the purposes of a hypothetical comparison, that there was a real possibility of their comparators being employed at the same establishments as them.
For the full judgement, click here.


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