Employment Law Bulletin - Issue 81 - 8 June 2010

Tuesday 8 June 2010

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Court of Appeal

Breach of contract

Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571
A person who suffers damage as a result of findings of personal or professional misconduct leading to dismissal and loss of professional status that were made in disciplinary proceedings conducted in breach of contract, but which would not otherwise have been made, may recover damages at large if it can be proven that those breaches caused the loss. Johnson v Unysis [2003] 1 AC 518 had not cast doubt on the decision in Gunton v Richmond upon Thames [1980] ICR 755. Johnson and Eastwood v Magnox [2005] 1 AC 503 were not concerned with the measure of damages for breach of an express term of the contract but with whether an employee has a cause of action at common law under the implied term of trust and confidence for unfair treatment in connection with his dismissal.
For the full judgment, click here.

Employment Appeal Tribunal

Admissibility of evidence

Woodward v Santander UK plc UKEAT/0250/09/ZT
The Employment Tribunal had not erred in excluding evidence of an alleged refusal, in the course of without prejudice negotiations, to provide a reference for the Claimant. In the circumstances there was no "unambiguous impropriety" of the kind envisaged in Unilever plc v Proctor & Gamble Company [2000] 1 WLR 2436. BNP Paribas v Mezzotero [2004] IRLR 508 did not establish any new exception and there is no wider exception where discrimination is alleged.
For the full judgment, click here.

Fresh evidence on appeal

Grahams Garden Machinery Ltd v Warne UKEAT/0155/10/DM
The admission of fresh evidence on the hearing of an appeal against the refusal of an extension of time by the Employment Tribunal is rarely necessary and is unjustifiable unless the strict requirements of Ladd v Marshall [1954] 1 WLR 1489 are satisfied. Nevertheless, even without admitting the affidavit evidence, and on the basis that there was no good reason for the delay, the Employment Tribunal had erred in failing to take into account other relevant factors such as the merits of the defence and the balance of prejudice to the parties in exercising its discretion.
For the full judgment, click here.

Unfair dismissal

Enable Care & Home Support Ltd v Pearson UKEAT/0366/09/SM
The Employment Tribunal erred in substituting its own version of the employer's reasons for dismissal for the Respondent's and then deciding on the basis of that version that no reasonable employer would have dismissed the Claimant.
For the full judgment, click here.

Bashir & anor v Sheffield Teaching Hospital NHS Trust UKEAT/0448/09/ZT
The refusal to grant the Claimants an internal appeal against the finding by the grievance panel of bad faith in bringing claims of race discrimination was a breach of the statutory procedures. However the subsequent refusal of the disciplinary panel to permit the Claimants to challenge that finding did not, in the special circumstances of the case, make the dismissal process unfair. The Claimants had made an informed decision to choose a stage of the grievance procedure which did not allow for an appeal and had then chosen not to attend the grievance hearing. They had also failed to take the opportunity to attend or provide submissions to the disciplinary hearing through which they could have responded to or tried to mitigate the effects of the findings. In any event the finding of the irretrievable breakdown of relationships was sufficient to justify dismissal.
For the full judgment, click here.

Employment status

Yorkshire Window Company Ltd v Parkes UKEAT/0484/09/SM
The EAT considered the authorities in relation to the provision of personal services and drew the following principles (a) the question whether or not a contract provides for the performance of personal services is a matter of construction, (b) the court is concerned with construing the contract, rather than with general policy considerations, (c) the fact that the individual chooses personally to supply the services is irrelevant; the issue is whether he is contractually obliged to do so, (d) the right or obligation to employ a substitute will not necessarily mean that there is no obligation on the part of the "contractor" to perform personal services unless that right to employ a substitute is unfettered, (e) in cases where the "contractor" is unable as opposed to unwilling, to carry out specified services, and has accepted an obligation to perform those services, but is unable to do so, and where he himself does not bear the costs of employing a substitute, a limited or occasional power of delegation may not be inconsistent with a contract to provide personal services, (f) a worker holds an intermediate position between an employee and someone who carries on his own business undertaking. In the present case the Employment Tribunal had not erred in holding that the Claimant was a "worker" within Regulation 2 of the Working Time Regulations 1998. His Claimant, whose contract described him as a "self-employed salesman" had only a limited right to delegate his work and had never sought to do so throughout his employment. Further he was precluded from working from any similar company and was not in business on his own account.
For the full judgment, click here.


Yorkshire Window Company Ltd v Parkes UKEAT/0484/09/SM
Where a decision is recorded in two separate judgments, written reasons for both must be served with the Notice of Appeal for the appeal to be properly constituted.
For the full judgment, click here.


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