Employment Law Bulletin - Issue 91 - 9 November 2010

Tuesday 9 November 2010

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European Court of Justice

TUPE

Albron Catering BV v FNB Bondgenoten Case C 242/09
Where there is a group of companies, one of which performs the function of central employer and deploys its employees amongst various companies within the group, the transfer of the activities of one company in the group to a company outside the group constitutes a transfer of undertaking within the Acquired Rights Directive. It is possible to regard as a 'transferor', within the meaning of Article 2(1)(a) of that directive, the group company to which the employees were assigned on a permanent basis without however being linked to it by a contract of employment. For the full judgment click here.

Age discrimination

Rosenbladt v Oellerking Gebäudereinigungsges mbH Case C 45/09
Automatic termination of the contract of employment at retirement age in accordance with a collective agreement was not age discrimination as it was justified by a legitimate, appropriate and necessary aim. The provisions balanced diverging but legitimate interests by guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers flexibility in the management of staff. For the full judgement click here.

Supreme Court

Effective date of termination

Gisda Cyf v Barratt [2010] UKSC 41
If a dismissal is communicated by letter the effective date of termination is when the employee reads the letter or has had a reasonable opportunity of learning of its contents. Whether there has been such a reasonable opportunity before it is actually read is a relevant consideration, however the focus should be on the reasonableness of any behaviour in failing to do so, not just on the fact of the opportunity itself. The conventional principles of contract law do not guide the proper interpretation of s97 Employment Rights Act 1996 Act and the doctrine of constructive knowledge has no place in the debate as to whether a dismissal has been communicated. For the full judgment click here.

Court of Appeal

Breach of contract

Malone & Ors v British Airways Plc [2010] EWCA Civ 1225
A collective agreement which stipulated the crew complement levels had not been incorporated into their individual contracts of employment and was therefore not enforceable by them on an individual basis. Although previous changes had always been agreed and never imposed, it was intended to be binding only "in honour" and the reduction in the crew complement below the agreed levels was not therefore an enforceable breach of contract. For the full judgment click here.

Statutory dismissal procedure

Cartwright v King's College London [2010] EWCA Civ 1146
To comply with Step 1 of the statutory dismissal procedures the letter must inform the employee that his is at risk of dismissal or it must be implicit in the letter, as in Homeserve Emergency Services Limited v. Dixon. If not, a prior oral exchange cannot fill such a gap, since what Schedule 2 mandatorily requires is a statement of the minimum information in writing. In the present case the requirement had not been complied with and the Employment Tribunal was wrong to dismiss his unfair dismissal claim and the Employment Appeal Tribunal was wrong to uphold its decision. For the full judgment click here.

Employment Appeal Tribunal

Procedure

Faleye & Anor v UK Mission Enterprise Ltd & Ors UKEAT/0359/10/LA
The Claimant does not have the positive legal right to have cases heard in the region where he or she is employed. The situation whereby claims are required to be presented to a particular office by reference to the postcode of the Claimant's place of work, and are thereafter managed and heard in that office, is only a practice. It is not prescribed by the Employment Tribunal Rules, or any other statutory instrument. As a result transfers between regions can be freely made for any reason that seems good to Regional Employment Judges, subject only to any question of the transfer giving rise to injustice. In the present case the Regional Employment Judge was entitled to transfer cases from London South to London Central in order to be case-managed with associated cases proceeding there. For the full judgment click here.

Redundancy

Fulcrum Pharma (Europe) Ltd v Bonaserra UKEAT/0198/10/DM
The Employment Tribunal did not err in finding that the dismissal for redundancy was unfair when the Respondent failed to consult on the appropriate pool for redundancy. For the full judgment click here.

Lancaster University v The University and College Union UKEAT/0278/10/JOJ
The provision by the Respondent to the trade union of a monthly list by email of those on fixed term contracts at risk of redundancy as their contracts were coming to an end, leaving the union to then raise any issues, did not meet the required level of consultation under s188 Trade Union and Labour Relations (Consolidation) Act 1992. It did not provide the required information and did not constitute consultation with the union about avoiding dismissals, reducing the number of employees to be dismissed or mitigating the consequences of the dismissal. The EAT would not interfere with the Tribunal's award. For the full judgment click here

Pinewood Repro Ltd t/a County Print v Page UKEAT/0028/10/SM
It is for the Employment Tribunal to decide whether an employee has been given a fair and proper opportunity to understand fully the matters about which he or she is being consulted and to express his or her views on those subjects, with the employer thereafter considering those views properly and genuinely. That may well include the need to be given sufficient information to be able to challenge the scores given to the employee in the completion of a redundancy exercise. For the full judgment click here.

Unfair dismissal

TGD Chemical Ltd v Benton UKEAT/0166/10/DM
The allegation of racial abuse mouthed at a colleague by the Claimant which led to his dismissal was grave one with serious consequences as envisaged in Salford v Roldan [2010] EWCA Civ 522, and so a high standard of investigation was required. It was unfair, given the paucity of evidence supporting the allegation, for the Claimant's representative not to have the opportunity, which he sought expressly at the disciplinary hearing, to ask questions of the alleged victim, who did not give evidence at the Tribunal, as to whether he was mistaken as to what he had understood he had seen. For the full judgment click here

Nunn v Royal Mail Group Ltd UKEAT/0530/09/DM
In unfair dismissal claims, the burden is on the employer to prove the reason for dismissal. Where the Claimant is asserting that the real reason is different to the one put forward by the employer, the Tribunal will have this in mind, and will need to test the employer's witnesses in relation to those matters that point to a reason other than that which is put forward. However, it is a matter for the Tribunal to come to a view as to whether, on the balance of probabilities, the employer has satisfied them as to the reason. For the full judgment click here.

Continuing act

Khetab v AGA Medical Ltd & ors UKEAT/0313/10/RN
The Employment Tribunal erred in deciding that certain allegations of discrimination were out of time as the issue of continuing act had not been pleaded in the ET1. The correct question was whether the Respondents were sufficiently on notice that the point may be deployed in answer to any limitation bar raised by the Respondent, or failing that the Employment Tribunal on its own initiative. Plainly the Respondents were on notice because they responded to the continuing act question in their ET3. For the full judgment click here.

Post-employment victimisation

PriceWaterhouse Cooper v Popa UKEAT/0030/10/DA
Although the Employment Tribunal had found that the type of reference given to the Claimant was less favourable treatment by reason of a protected act, it erred in failing to consider whether she had suffered a "detriment" within the meaning of s27A(2)(a) Race Relations Act 1976 as a result. For the full judgment click here.

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