Employment Law Bulletin - Issue 82 - 23 June 2010

Wednesday 23 June 2010

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EMPLOYMENT APPEAL TRIBUNAL

Territorial jurisdiction

Neary v Ministry of Defence & ors UKEAT/0101/10/DA
Although the Employment Tribunal had erred in its approach to the question whether at the relevant time the Claimant was "ordinarily resident" in Great Britain for the purposes of Section 68(2A)(c) Disability Discrimination Act 1995, and Regulation 10(2)(c) Employment Equality (Age) Regulations 2006, it had arrived at the correct conclusion on the facts. While there was no statutory guidance in relation to the term for the DDA there was guidance in relation to the age regulations. In addition the EAT relied on the caselaw interpreting a similar phrase in income tax legislation in considering the correct approach. Click here.

Statutory dismissal procedure

Ngo Mbog v Whitbread Group plc UKEAT/0510/09/LA
The Claimant claimed unfair dismissal and race discrimination. The claim for unfair dismissal was lodged after the three month time limit and the internal dismissal procedures had already been exhausted. However before the end of her employment the Claimant lodged a grievance about race discrimination in which she complained of her dismissal, and the result of those procedures had not been communicated to her before the date she lodged the claim. The claim for race discrimination was lodged later although it was substantially the same and also out of time. In the circumstances Regulation 15(1) Employment Act 2002 Dispute Resolution Regulations 2004 applied. The "substance of the complaint" under Regulation 15(2) is the substantial factual matrix of the complaint rather than the cause of action relied on, and the grievance procedure although including race discrimination was still dealing with a complaint about the dismissal. Click here.

New evidence on appeal

Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA
The EAT held at a Rule 3(10) hearing that in almost all circumstances parties seeking to rely on fresh evidence should seek to proceed in the Employment Tribunal by way of review relying on rule 34(3)(d), rather than by way of appeal, and that appeals to the EAT based on fresh evidence would normally be stayed pending a review application (even if not dismissed for lack of jurisdiction). The present case the Claimant had not demonstrated that with reasonable diligence he could not have called at the original hearing the evidence that he had in fact lodged a grievance before his claim for first time round. Ladd v Marshall applied. Click here.

Effective date of termination

Heaven v Whitbread plc UKEAT/0084/10/JOJ
The date of the Claimant letter of resignation, conditional on receiving an assurance that he would be paid a month's salary in lieu of notice, and be given a "glowing reference" was not the effective date of termination, even though the Claimant sought to rely on it as having effect a few days later. The effective date of termination was the date the unequivocal resignation was given and could not be altered either unilaterally or by agreement. Fitzgerald v University of Kent [2004] EWCA Civ 143 applied. Click here.

Unfair dismissal

Pinto v Gloucestershire NHS Primary Care Trust UKEAT/0351/09/DA
In the course of investigation into three disciplinary matters, for which a health care professional was given a final warning, other matters came to light. The Claimant did not challenge the evidence and consented to all the matters being considered together, which resulted in her dismissal. The Employment Tribunal did not err in finding dismissal was a reasonable response to the Claimant's conduct in putting patients at risk. Click here.

Disability discrimination

J v DLA Piper UK LLP UKEAT/0263/09/RN
While Employment Tribunals should state separate conclusions on the questions of impairment and of adverse effect as recommended in Goodwin, in reaching those conclusions it should not proceed by rigid consecutive stages. In cases where the existence of an impairment is in dispute it makes sense to first make findings about adverse affects (on a long-term basis), and to consider the question of impairment in the light of those findings. In the present case the Employment Tribunal erred in failing to take into account the evidence of the Claimant's GP when deciding that she was not disabled at the relevant time when it was not unequivocally contradicted by other medical evidence. Its view that she was not an "expert" was wrong. Although a GP is not a specialist in mental health, depression is a condition which is often encountered and their evidence should not be ignored if the evidence of a specialist is not available or is inconclusive. Click here.

 

 

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