Employment Law Bulletin - Issue 90 - 12 October 2010

Tuesday 12 October 2010

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Employment Appeal Tribunal

Compromise

Allma Construction Ltd v Bonner UKEATS/0060/09/BI
The Employment Tribunal had erred in finding that there was no binding compromise of the Claimant's claim in circumstances where there had been a verbal acceptance of the offer made by the Respondent which was relayed through the ACAS officer although nothing had been reduced to writing. The EAT held that it was not relevant that other matters usually dealt with in ACAS settlements had not been expressly agreed or reduced to writing. Payment within a reasonable time would be implied as would payment being in full and final settlement of the Claimant's claims. There was no question of personal injury or pension loss claims featuring in the claim so these matters did not obviously require to be the subject of separate agreement or recorded in a document. In any event, parties are not limited to a single contract and the fact that they could have entered into further agreements did not mean that they did not enter into binding initial agreement regarding the essentials.
For the full judgment click here.

Statutory dismissal procedure

Owolowo v Family Mosaic Housing Association UKEAT/0160/10/ZT
It is possible to be engaged in a process which meets the criteria of Regulation 15(2) Dispute Resolution Regulations 2004 even if it is not within the formal process of the employment relationship. In the instant case, as the issue was before Employment Judge and there was evidence that the Claimant believed that by a solicitor writing on his behalf to his employer asking to be re-instated, a procedure was being followed in relation to his dismissal, the Employment Judge was duty bound therefore, with a litigant in person, to consider what was the state of mind of the Claimant at the end of the first limitation period and to consider whether he did believe and reasonably believe the process was ongoing.
For the full judgment click here.

Contractual terms

Agnew & ors v North Lanarkshire Council UKEATS/0029/09/BI
The Claimants' individual contracts of employment stated that terms and conditions incorporated collective agreements negotiated nationally from time to time. The Employment Tribunal had not erred in concluding that a particular term of the collective agreement was apt for incorporation into the individual contracts and its effect was that the Respondent had been contractually entitled to implement a new pay model in accordance with the collectively agreed single status agreement. There was therefore no unlawful deductions from wages.
For the full judgment click here.

Continuity of employment

Hussein v Acorn Independent College Ltd UKEAT/0199/10/SM
A teacher was employed on a short term basis until the end of the school year for sickness cover and on the unforeseen resignation of the teacher for whom he was providing cover, was re-employed on a permanent basis after the school holiday, before subsequently being dismissed. The EAT held that the Employment Judge erred in failing approach the issue of continuity of service by looking back from the end of the second contract. It is not a requirement of the statute that there be examination of the expectation of the parties of further work. Ford v Warwickshire County Council [1983] ICR 273 applied, and the intervening period was a temporary cessation of work under s212(3)(b) Employment Rights Act 1996.
For the full judgment click here.

Dismissal

Merrick v Fearon Vaughan Simpson UKEAT/0349/10/ZT
By analogy with Rose v Dodd [2005] ICR 1776 the suspension of a solicitor from practice does not automatically terminate the employment of the Claimant employee of that firm. In the instant case where there was a discrete point such as this which would determine the case on a strike out application under rule 18(7)(b) it was wrong for the Employment Tribunal not to have dealt with the matter at a Pre-Hearing Review.
For the full judgment click here.

Sex discrimination

Nixon v Ross Coates Solicitors UKEAT/0108/10/ZT
The Employment Tribunal had erred in finding that gossip about the Claimant's behaviour at the Respondent's Christmas party and subsequent pregnancy was not related to pregnancy, and that the refusal of her request to move to a different office as a result related to her pregnancy. The Employment Tribunal had also erroneously allowed its view about the Claimant's conduct of the proceedings to affect its judgment on contribution.
For the full judgment click here.

Hacking & Patterson v Wilson UKEATS/0054/09/BI
Where the Claimant was initially employed full time as a property manager and wanted to return to work part time after her maternity leave, it was a case of the grant of a benefit and the correct pool was such of the Respondents' property managers as, at the relevant time, wanted flexible working to be available. Those who had no interest in flexible working ought not, for the reasons explained in Rutherford v Secretary of State for Trade and Industry [2006] IRLR 551, to be included in the pool. The EAT distinguished London Underground v Edwards [1998] IRLR 364 on the basis that the Respondent was not seeking to impose any new obligation given that the terms and conditions had been agreed years before.
For the full judgment click here.

Race discrimination

Hammonds LLP & ors v Mwitta UKEAT/0026/10/ZT
The Employment Tribunal had erred in holding that the burden of proof shifted to the Respondents if the Claimant established facts on which it could conclude that the Respondents could have committed acts of race discrimination instead of determining whether the Claimant had established facts from which it could properly conclude that the Respondents had discriminated against her on grounds of race.
For the full judgment click here.

Amendment of Equal Pay claim

East Dunbartonshire Council v Trade Union Backed Claimants & Steffan Cross UKEATS/0005/10/BI
The Employment Judge was correct that she still had discretion to amend to add new comparators to the claim for equal pay even though some of the Claimants had left the Respondent's employment more than six months previously and therefore a fresh claim would normally be time barred. TGWU v Safeway Stores Ltd [2007] UKEAT/0092/07/0606 applied. However she had erred in holding that the Respondent's complaint that it had been prejudiced by not being able to address the comparators and try to resolve the matter before proceedings were issued could be dealt with when assessing compensation, as the statutory grievance procedure had in fact been complied with and there was no basis for a reduction.
For the full judgment click here.

Newsquest (Herald & Times Ltd) v Keeping UKEATS/0051/09/BI
The Employment Judge had erred in allowing the Claimant to amend her claim for equal pay to include a claim for an earlier period when she was employed in a different job. The Employment Judge had erroneously concluded that no time limit issue arose as she had incorrectly taken the relevant date as the date at which the ET1 was issued and not the date of the application to amend. Further there was no explanation for the lateness and there had been no prior grievance.
For full judgment click here.

Religion or belief discrimination

Greater Manchester Police Authority v Power UKEAT/0434/09/DA
On the evidence before it the Employment Tribunal had not erred in holding that belief in spiritualism and the philosophical belief in life after death and psychic powers fell within the Employment Equality (Religion or Belief) Regulations 2003.
For full judgment click here.

Whistleblowing

Easwaran v St George's University Hospital of London UKEAT/0167/10/CEA
The Employment Tribunal had not erred in finding that the Claimant had not made a qualifying disclosure in accordance with s43B Employment Rights Act 1996. His belief that the temperature where he was working was a danger to health and safety under s43B(1)(d) in that he was at risk of catching pneumonia was, on the evidence, factually wrong and unreasonable.
For the full judgment click here.

TUPE

Wood v Caledon Social Club Ltd (debarred) & anor UKEAT/0528/09/CEA
A temporary cessation of operation at the putative transfer date does not prevent the economic entity referred to in Regulation 3(1)(a) of the TUPE Regulations 2006 from transferring. In the present case the economic entity did not cease to exist when license was revoked, it was temporarily suspended until it re-opened after a personal licence had been granted.
For full judgment click here.

 

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