Employment Law Bulletin - Issue 85 - 5 August 2010

Thursday 5 August 2010

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Supreme Court

Part-time Workers

O'Brien v Ministry of Justice [2010] UKSC 34
The House of Lords has referred questions to the ECJ on whether it is for national law to determine whether judges as a whole are "workers" for the purpose of the Framework Directive or whether there is a community norm to be applied, and if they are workers whether it is permissible to discriminate between full and part-time judges and between different kinds of judges in relation to pensions.
For the full judgment, click here.

Court of Appeal

Employment Status

RSA Consulting Ltd v Evans [2010] EWCA Civ 866
The Employment Tribunal had erred in finding that the Claimant was not a worker for the purposes of s.230(3) Employment Rights Act 1996 by focussing only on the documents before it. Where the claim is that a contract should be implied in accordance with the principle of necessity, evidence of the actual relationship must be considered. In the present case the Employment Judge did not set out what evidence the Claimant had given or relied upon in this regard. Nor did he in terms identify the legal principles which he was applying.
For the full judgment, click here.


New Star Asset Management Holdings Ltd v Evershed [2010] EWCA Civ 870
The Employment Tribunal had erred in failing to allow the Claimant's application to amend his claim for unfair dismissal to include a claim for automatic unfair constructive dismissal on the basis that the reason, or principal reason, for his dismissal was that he had made a protected disclosure. The factual allegations relied upon to found the claim were not materially different from those included within the ET1 and which the Claimant would advance as part of his overall case in the original claim and therefore it was wrong to say that it would require wholly different evidence to be adduced.
For the full judgment, click here.

Age Discrimination

Seldon v Clarkson Wright & Jakes (A Partnership) [2010] EWCA Civ 899
The Employment Tribunal had not erred in holding that although the Claimant had suffered less favourable treatment as a consequence of his age, his treatment was justified as it was a proportionate manner of meeting legitimate aims. Further there is no reason in principle why a directly discriminatory measure may not be justified by a legitimate aim other than that which was specified at the time when the measure was introduced, in the same way as it may be in cases of indirect discrimination.
For the full judgment, click here.

Disability Discrimination

Aylott v Stockton-On-Tees Borough Council [2010] EWCA Civ 910
The Employment Tribunal had not erred in finding direct discrimination in the dismissal of the Claimant. The Respondent's "stereotypical view of mental illness" was not too vague a finding to support that conclusion where there was evidence from which it could be established that such assumptions existed and were operative in the decision to dismiss. It had not erred in its choice of hypothetical comparator. It had however erred in its approach to disability-related discrimination. Malcolm applied.
For the full judgment, click here.

Burden of Proof

St Christopher's Fellowship v Walters-Ennis [2010] EWCA Civ 921
The Employment Tribunal had erred in finding that the burden of proof had shifted to the Respondent in relation to one claim of race discrimination and not in another when there were no significant factual differences between the two cases.
For the full judgment, click here.

Employment Appeal Tribunal

Territorial Jurisdiction

Ministry of Defence v Wallis & Grocott UKEAT/0546/08/ZT
The Employment Tribunal had jurisdiction to entertain claims for unfair dismissal by the Claimants, who were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands and employed in schools attached to those headquarters, as there was a sufficiently special connection between their employment and Great Britain. There was also jurisdiction to hear claims for sex discrimination given the directly effective rights under the Equal Treatment Directive. The principal in Bleuse v MBT Transport Ltd [2008] IRLR 264 applied.
For the full judgment, click here.


Butt v Bradford Metropolitan District Council UKEAT/0210/10/ZT
Under the statutory and regulatory framework through which school governors exercise employment powers, the governors take on responsibility not only for the acts of their own employees but employees of the local authority, provided that those acts or statements on behalf of the local authority are factually connected to the exercise of their employment powers. Further it would be an abuse of process to allow a complaint of aiding an unlawful act under s.33 Race Relations Act 1976 to proceed against the Respondent in circumstances where the Claimant had compromised the claims against the governors for the acts which it said the Responded had aided without admission of liability.
For the full judgment, click here.

Statutory Grievance Procedure

Scottish Opera Ltd v Winning UKEATS/0047/09/BI
Under the Employment Act 2002 a grievance is capable of including not only the act or omission complained of but its consequences. In the present case the failure to make reasonable adjustments led to the dismissal. The grievance was that the employer had dismissed the employee and Regulation 6(5) Employment Act 2002 (Dispute Resolution) Regulations 2004 applied. The grievance procedure did not have to be followed.
For the full judgment, click here.

Pension Loss Compensation

Sibbit v The Governing Body of St Cuthbert's Catholic Primary School UKEAT/0070/10/ZT
After permissibly deciding to adopt the guidelines for Employment Judges on pension loss, the Employment Tribunal had erred in principle in using the simplified rather than the substantial approach. The Claimant had had long service as a teacher and would have retired in one year in any event. She was not in future employment liable to economic risk or liable to be and the difference as between the simplified and the substantial approach could be easily assessed. In the circumstances the guidelines provided only one possible option.
For the full judgment, click here.

Sex Discrimination

Johal v Commission for Equality and Human Rights UKEAT/0541/09/DA
The Employment Tribunal had not erred when it found that the there was no sex discrimination in the Respondent's failure to notify the Claimant of an internal job opportunity contrary to section 3A(1)(b) Sex Discrimination Act 1975. Its finding that that the reason for that treatment was administrative error, not the fact of maternity leave was permissible. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 properly applied.
For the full judgment, click here.


CK Heating Ltd v Doro UKEATS/0043/09/BI
An Employment Tribunal purported to review its own oral decision in relation to remedy in the subsequent written judgment. The EAT held that while it had no power to do so as it had not complied with the relevant procedural rules, Hanks v Ace High Productions Ltd [1978] ICR 1155 applied and it had the power of recall. The fact that it had used the wrong label for its actions was not essential. Further in the circumstances it had not erred in taking the course that it did.
For the full judgment, click here.


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