Employment Law Bulletin - Issue 87 - 1 September 2010

Wednesday 1 September 2010

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Employment Appeal Tribunal

Stay of Proceedings

Gloucester Constabulary v Peters UKEAT/0322/10/ZT
The Employment Tribunal had erred in refusing to allow a further stay of a hearing in relation to disability where the issue of "day to day activities" of the employee, a service police officer, were also the subject of a police fraud investigation. However the stay would not be indefinite until the conclusion of the investigation, as requested, but limited in time.
For the full judgement, click here

Statutory Dismissal Procedure

Thomson v London Borough of Haringey UKEAT/0318/09/LA
The EAT reviewed the case law on Step 1 of the disciplinary and dismissal procedure. In the context of the Employment Tribunal's findings as to what the Claimant knew about her risk of dismissal for redundancy and previous correspondence, an email, which taken alone would not have satisfied the procedure, could only be understood by reference to that correspondence and in the circumstances did meet the statutory requirements.
For the full judgement, click here

West Hertfordshire Hospitals NHS Trust v Evans UKEAT/0398/09/SM
The Employment Tribunal did not err in holding that the employer was in breach of the statutory dismissal procedure by failing to warn the employee of the possibility that the disciplinary hearing could result in her dismissal in accordance with Step 1 and Alexander v Brigden Enterprises Ltd [2006] IRLR 422 before the Step 2 meeting was held. The inclusion of the disciplinary policy with the letter, which indicated that allegations such as those against the Claimant if proven were gross misconduct, did not constitute compliance. Neither did the giving of such a warning before a reconvened hearing cure the defect as the hearing was not restarted after the necessary information had been given. YMCA Training v Stewart [2007] IRLR 185 considered. However as the warning was given prior to the reconvened hearing the 30% uplift was perverse, and was reduced to 10%.
For the full judgement, click here

Protective Award

Canadian Imperial Bank of Commerce v Beck UKEAT/0141/10/RN
In making a protective award under section 189 Trade Union and Labour Relations Consolidation Act 1992, the Employment Tribunal did not err in not including a discretionary bonus scheme as part of a week's pay for the purposes of section 221(2) Employment Rights Act 1996 where the date for paying or considering whether to pay such a bonus had not yet occurred.
For the full judgement, click here

Age Discrimination

Canadian Imperial Bank of Commerce v Beck UKEAT/0141/10/RN
The Employment Tribunal did not err in law in finding that in the age discrimination claim the burden of proof passed to the Appellant nor that the Respondent had failed to discharge it. The fact that the person specification for the job which replaced the Claimant's sought a person with a "younger...profile", despite expert advice that such a phrase should not be included, did shift the burden of proof to the Respondent which it did not discharge.
For the full judgement, click here

Disability Discrimination

Anwar v Tower Hamlets College UKEAT/0091/10/RN
The Employment Tribunal erred in applying the "more probable than not" test when considering whether an impairment is "likely" to last at least 12 months. Further, while the possibility of effective medical treatment to cure the impairment is a relevant consideration, a sophisticated analysis of the factors involved in obtaining such treatment in the 12 month period is necessary. The Employment Tribunal had erred in treating as determinative the comment in the doctor's report that the impairment was amenable to treatment within that time.
For the full judgement, click here

Maternity and Redundancy

Simpson v Endsleigh Insurance Services Ltd UKEAT/0544/09/DA
In determining whether there is a suitable available vacancy under Regulation 10(2) Maternity and Parental Leave Regulations 1999, Regulations 10(3)(a) and 10(3)(b) must be read together.
For the full judgement, click here

 

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