Employment Law Bulletin - Issue 83 - 7 July 2010

Wednesday 7 July 2010

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Court of Appeal

Equal pay

North Cumbria University Hospitals NHS Trust v Fox & ors [2010] EWCA Civ 729
Although the Claimants' original contracts may have come to an end by the imposition of new terms, they continued to be employed as nurses doing the same work and therefore were in a "stable employment relationship" which meant that time had not started to run in relation to a claim for equal pay in relation to the previous contracts. Slack v Cumbria CC [2009] IRLR 463 applied.
For the full judgment, click here.

Employment Appeal Tribunal

Unincorporated associations

Nazir & Aslam v Asim & Nottinghamshire Black Partnership UKEAT/0332/09/RN
In ordinary civil proceedings an unincorporated association can neither sue or be sued in its own name. It therefore remains good practice for a Claimant employee to name a representative Respondent who was a member of the management committee at the relevant time and state that he is sued on his own behalf and on behalf of all other members of the executive committee at the relevant time. Affleck and others v Newcastle Mind and others (1999) IRLR 405 considered and applied. However it is permissible, in Employment Tribunal procedure, where there are strict time limits and where many Claimants are litigants in person, for an employee to make a claim against the employing management committee of an unincorporated association using the name of the unincorporated association and for any issues arising to be dealt with as a matter of case management.
For the full judgment, click here.

Time limits

Lezo v OCS Group Ltd UKEAT/0104/10/SM
Although it was not reasonably practicable for the Claimant to present his unfair dismissal claim within the three month time limit, he had not thereafter presented in within a reasonable period. The authorities on "reasonably practicable", and fault of advisers, were applicable to deciding what was a further reasonable period. See Northumberland County Council v Thomson UKEAT/0209/07.
For the full judgment, click here.

Unless orders

Riniker v City & Islington College Corporation UKEAT/0495/08/CEA
Rule 13(2) empowers the Employment Tribunal to make an order specifying that a claim or response will be automatically struck out in default of compliance "on the date of non-compliance". The consequences of disobedience cannot be avoided by making an application to vary or discharge, or to extend time. A party who chooses not to comply with the order but to rely on an application to vary or discharge the order (or to extend time) does so at risk that the order will take effect.
For the full judgment, click here.

Brill v Interactive Business Communications Ltd UKEAT/0062/09/JOJ
An Employment Judge had the power to vary an unless order to remove the unless sanction from the order and to reverse the striking out of the ET3. The judge was entitled to find that the sanction of striking out the response to an entire claim on the basis of failure to supply an address of a potential witness in the circumstances of this case was disproportionate. Ordinarily it would be appropriate for the judge to have given parties an opportunity to make representations before revoking the order, however in this case there had not been time to do so. In any event no representations could have been made which would have affected the outcome. The order had been made on 30 December for compliance by 2 January and the Respondent was unaware that an unless order had been imposed until after it had been implemented.
For the full judgment, click here.

Appeal

Riniker v City & Islington College Corporation UKEAT/0495/08/CEA
The usual practice of the EAT has been to treat an original judgment and a review judgment as separate and to require a notice of appeal for each judgment or order. It is not the normal practice to entertain an application to amend an existing notice of appeal in order to appeal against a different order. Even if it is permissible to add an appeal against a different judgment or order by means of amending an existing Notice of Appeal, leave to amend ought only to be granted where, in accordance with the usual practice, an extension of time for appealing would be granted. The EAT could not envisage any circumstances in which an appellant who has been refused an extension of time for appealing would subsequently be granted leave to amend an existing notice of appeal so as to appeal the very same order or judgment. The appellant's remedy, if refused an extension of time for appealing, is to appeal against that refusal.
For the full judgment, click here.

Privilege

Scotthorne v Four Seasons UKEAT/0178/10
The communications with insurers after an altercation between the Claimant and Respondent and during subsequent disciplinary action attracted litigation privilege. The advice given by the insurer would correspond to the Respondent both seeking to avoid litigation and assisting the Respondent should litigation occur. In that case it did not matter that some of those giving advice were not legally qualified. However there would be difficulties with earlier advice given by non-lawyers at the insurers attracting legal advice privilege.
For the full judgment, click here.

Statutory dismissal procedures

Bond v Urmet Domus Communication & Security UK Ltd UKEAT/0103/10/JOJ
The Respondent had failed to comply with Step 2 of the statutory dismissal procedures. In a redundancy situation, the employer should provide to the employee not only the basic selection criteria which have been used, but also the employee's own individual assessment against them, and what it is that has led the employer to select him rather than another employee. The fact that the employee may have the opportunity to ask for such information does not avoid the employer's obligation to provide it. Alexander & Hatherley v Bridgen Enterprises Ltd [2006] IRLR 422 applied.
For the full judgment, click here.

Statutory grievance procedures

Reddy & ors v The Bedfordshire & Luton Partnership NHS Trust UKEAT/0023/10/ZT
In the context of public sector equal pay claims and TUPE transfers, the submission by a union representative of a written grievance to the County Council, copying in the NHS Trust as employer and which was forwarded to the Trust by the Council constituted compliance with the requirement in regulation 9(1)(a) Dispute Resolution Regulations 2004 that the grievance be "written to the employer". This is not a requirement that it is "sent to" the employer. In any event it is sufficient that the employer receives the grievance as it did here.
For the full judgment, click here.

Brill v Interactive Business Communications Ltd UKEAT/0062/09/JOJ
The Employment Tribunal erred in refusing an application to amend an ET1 to include a claim for associative disability discrimination as no grievance had been raised. As the discrimination related to the Claimant's dismissal no grievance was necessary.
For the full judgment, click here.

Time limits

Northamptonshire County Council v Entwhistle UKEAT/0540/09/ZT
Where the Respondent had given the Claimant wrong information about the time limit for bringing a claim but the Claimant had consulted solicitors, who negligently failed to notice the error leading to the claim being presented out of time, the Employment Tribunal had erred in holding it was not reasonably practicable to present the claim in time. If his solicitor had given the Claimant advice of the kind he should reasonably have been given, the employer's mistake would have had no effect. Dedman [1974] ICR 53, Walls [1979] ICR 52 and Williams-Ryan [2008] ICR 193 followed, Sen [1993] IRLR 333 distinguished.
For the full judgment, click here.

Race discrimination

Gayle v Sandwell & West Birmingham Hospitals NHS Trust UKEAT/0338/09/RN
Subjecting an employee to a disciplinary process, whatever its outcome, could as a matter of law be held to be a detriment. The Employment Tribunal erred in concluding that because the allegations were dismissed the initiation and continuation of the disciplinary procedure did not constitute a detriment.
For the full judgment, click here.

Disability discrimination

Atiken v The Commissioner of Police of the Metropolis UKEAT/0226/09/ZT
Action taken on the basis of a mistaken perception that a Claimant is suffering from a particular disability does not fall within the scope of the Directive 2007/78 and therefore is not disability discrimination. EBR Attridge Law LLP v Coleman [2010] ICR 242 distinguished.
For the full judgment, click here.

 

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