Employment Law Bulletin - Issue 89 - 28 September 2010

Tuesday 28 September 2010

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Employment Appeal Tribunal

Postponement

Chang-Tave v Haydon School UKEAT/0153/10/CEA
The Employment Tribunal refused the Claimant's application to postpone a hearing on medical grounds. The medical evidence before it were medical reports showing the Claimant had suffered a major depressive disorder and a recent letter from the Claimant's doctor who stated he was psychologically vulnerable and advised him not to attend. The Tribunal held that this was not sufficient evidence to show the Claimant was unable to attend the hearing and since he was able to produce a detailed and lucid witness statement and write asking for a review of the initial postponement decision he was capable of attending to his affairs. The EAT held that the Employment Tribunal had erred. The case was on all fours with Teinaz v London Borough of Wandsworth [2002] IRLR 721 and an adjournment should have been allowed. Further it had taken into account irrelevant factors regarding his written evidence and application.
For the full judgment, click here.

Amendment

Badra v Gardiner & Theobold LLP UKEAT/0191/10
The minimum requirement of an ET1 is that there is some specific allegation of a claim within the jurisdiction of the Employment Tribunal or a reference to facts from which the nature of the claim can be reasonably and objectively discerned. In the present case although the ET1 mentioned that the Claimant's male colleague had been paid for overtime when she was not, it failed to identify a claim for equal pay, instead identifying a claim for sex discrimination. The Employment Tribunal had not erred in refusing to allow an amendment which was by that time statute barred.
For the full judgment, click here.

Unfair dismissal

Celebi v Scolarest Compass Group UK & Ireland Ltd UKEAT/0032/10/LA
Where theft of money was said in evidence by the dismissing manager as the reason for dismissal, the dismissal was unfair as this allegation had never been directly put to the Claimant. The Employment Tribunal had not in the circumstances been entitled to find that the reason for dismissal was that set out in correspondence and the ET3, namely "loss" of the money. Strouthos v London Underground [2004] IRLR 636 applied.
For the full judgment, click here.

Compensation

Thaine v London School of Economics UKEAT/0144/10/SM
The EAT held, after considering the common law authorities, that where personal injury has been caused by a combination of factors, some of which amount to unlawful discrimination for which the employer is liable, but others for which it is not, an Employment Tribunal may discount the employee's compensation by such percentage as reflects its apportionment of that responsibility. In the present case while the unlawful discrimination had been found to be a material and effective cause of the Claimant's psychiatric illness, the Employment Tribunal had not erred in discounting compensation by 60% to reflect the other factors which had contributed to her illness.
For the full judgment, click here.

Bullimore v Pothecary Witham Weld Solicitors UKEAT/0189/10/JOJ
The Employment Tribunal had erred in not awarding the Claimant loss of earnings resulting from victimisation once it had found that a prospective employer had withdrawn its job offer due to the information in the Respondent's reference that she had brought a sex discrimination claim against it. The action of the prospective employer was not a new intervening act which broke the chain of causation although it was itself an unlawful act. When an adverse reference, given for an illegitimate reason, leads to an employer deciding not to make, or to withdraw, an offer to a candidate that consequence should not be regarded as too remote to attract compensation from the giver of the reference.
For the full judgment, click here.

Kelly v University of Southampton UKEAT/0139/10/LA
The Employment Tribunal had not erred in finding that the Claimant had failed to mitigate her loss after her dismissal by failing to apply for two jobs with the Respondent. Despite the lack of direct witness evidence that she would have been appointed to one of the posts, the Employment Tribunal was entitled to find in all the circumstances the she would have been appointed to one of them.
For the full judgment, click here.

Legislation

Equality Act 2010

The majority of Equality Act's provisions come into force on 1 October 2010.

The Government Equalities Office has produced summaries of the Act for various sectors affected which can be found here.

Acas has produced a guide for employers which can be found here.

The Equality and Human Rights Commission has yet to publish codes of practice, but it has produced guidance which can be found here.

 

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