Employment Law Bulletin - Issue 86 - 18 August 2010

Wednesday 18 August 2010

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Employment Appeal Tribunal

Procedure

South Lanarkshire Council v Russell & Ors UKEATS/0067/09/BI
Under Rule 18(2) relating to Pre-Hearing Reviews an Employment Tribunal or Employment Judge sitting alone can issue an order in accordance with Rule 10. However if a full Tribunal is sitting under that rule then it must be the full Tribunal and not the Employment Judge alone who makes the order under Rule 10, unless the PHR is adjourned and the Employment Judge then convenes a CMD alone.
For the full judgment, click here

Apparent Bias

Dorbcrest Homes Ltd v Fishwick UKEAT/0507/09/JOJ
Where an Employment Judge had wrongly purported to decide a claim of unfair dismissal without jurisdiction because she was sitting alone, and did not have the written consent of the parties, and the decision was revoked on review, the same Employment Judge should not have chaired the Employment Tribunal which decided the matter. There was apparent unfairness in her having already expressed a definitive opinion on the case.
For the full judgment, click here

Statutory Dismissal Procedures

Carclo Technical Plastics Ltd v Jeyanthikumar UKEAT/0129/10/CEA
Where the decision to dismiss had already been taken and the dismissal letter written in advance of the meeting, and it was accepted that nothing that the Claimant said at the meeting would have prevented her being dismissed, the Employment Tribunal was entitled to conclude that the meeting was not a step 2 meeting. Further the dismissal was unfair as the Claimant was marked down in two of the redundancy selection criteria for the same incident, which made the decision to dismiss fundamentally flawed.
For the full judgment, click here

Employment Status

Community Dental Centres Ltd v Sultan-Darmon UKEAT/0532/09/DA
Having found that the Claimant was not a "employee" for the purposes of section 230(3) Employment Rights Act 1996 as his contract gave him a discretion whether to attend and accept patients, so there was no mutuality of obligation. It followed in the circumstances that he was neither a "worker" as he did not "undertake to do or perform personally any work or services". In addition, the contract provided for an unfettered right of substitution. The EAT considered the authorities on the matter and held that such a right without sanction means that a Claimant could not be a "worker". Observations in Redrow to the effect of the obligation to provide a substitute satisfied the requirement personally were obiter.
For the full judgment, click here

Fixed-term Workers

The Manchester College v Cocliffe UKEAT/0035/10/CEA
In deciding whether a fixed-term employee has been treated less favourably than his comparator the Employment Tribunal must take a stepped approach. First, it must decide whether the Claimant and the comparator were engaged on the same or broadly similar work; second, whether the less favourable treatment was on the ground that the Claimant was a fixed term employee; and third, whether the treatment was not justified on objective grounds. The Employment Tribunal had erred in considering justification before deciding whether there had been less favourable treatment. It also erred in failing to consider whether the difference in roles which it found to exist between the Claimant and his comparator justified his less favourable terms.
For the full judgment, click here

Sex Discrimination

The Governing Body of St Andrew's Catholic Primary School & ors v Blundell UKEAT/0330/09/JOJ
The EAT reviewed the authorities on awards for injuries to feelings post Vento and held that the discrimination against the Claimant did not fall into the top band and was accordingly reduced. However it upheld the award for aggravated damages of £5000 on the basis that the Respondent had sought to go behind the finding of the liability decision that the Claimant was a competent teacher by bringing evidence not adduced at that hearing that it had no confidence in her teaching ability. Further, the Employment Tribunal's recommendation that the employer send a letter of apology should not require a person to make a statement with which in good faith they disagree.
For the full judgment, click here

Equal Pay

Brownbill & ors v St Helens & Knowsley Hospital NHS Trust UKEAT/0074/10/CEA
Pursuant to the provisions of the Equal Pay Act 1970, and the decision of the House of Lords in Hayward v Cammell Laird Shipbuilders Ltd [1988] AC 894, it is the contractual term chosen by the Claimant that is material to the determination of her claim. It was irrelevant therefore whether the Claimants, as a result of amalgamating the relevant benefits, received overall more than their comparators. In the present case the Employment Tribunal therefore erred in considering the relevant term as the overall pay for normal working hours which was not less favourable, after it had found that there was a discrete term relating to enhanced payments for unsocial hours which was. Degnan and Others v Redcar and Cleveland Borough Council [2005] IRLR 615 distinguished as it was a case in which it was conceded that bonus payments were part of basic pay.
For the full judgment, click here

TUPE

Nationwide Building Society v Benn & ors UKEAT/0273/09/JOJ
The Employment Tribunal did not err in finding that the dismissals of the Claimants were for an organisational reason entailing changes in the workforce within the meaning of regulation 7(2) TUPE Regulations 2006. The changes did not have to affect the whole of the workforce to fall within that regulation. However it had erred in taking into account a perceived breach of the consultation requirements of regulation 13(6) in finding that the dismissals were unfair.
For the full judgment, click here

Todd v Strain & ors UKEATS/0057/10/BI
Although the Employment Tribunal had not erred in finding breach of the duties to inform and consult under regulations 13(2) and 13(6) TUPE Regulations 2006, it was wrong in principle to award maximum compensation in circumstances where some, though inadequate, information had been given and the measures requiring consultation were of very limited significance. Also, under regulation 15(9) the Employment Tribunal was obliged to find the transferee jointly and severally liable with transferor.
For the full judgment, click here

 

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