Employment Law Bulletin - Issue 93 - 8 December 2010

Wednesday 8 December 2010

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Employment Appeal Tribunal

Amendment

Parveen v International Dance Shoes Ltd and Aulakh UKEAT/0447/10/LA
The Employment Tribunal had erred in refusing to allow the Claimant to join an individual as a Respondent as she was out of time. She had stated in her ET1 that she wanted to do so but did not know his surname and did so promptly when it was discovered. Drinkwater Sabey Limited v Burnett [1995] IRLR 238 applied. For the full judgment click here.

Withdrawal

Smith v Greenwich Council & ors UKEAT/0113/10/JOJ
The Claimant, who was dyslexic and was representing himself, asked the Employment Tribunal to adjourn for a day in the 10 day hearing so he could prepare his cross-examination. The Employment Tribunal asked him to consider another proposal at which point he said that they had refused his application and he no longer trusted them and was leaving and would appeal. Relying on Rule 25 the Employment Tribunal held that his words and conduct unequivocally amounted to the withdrawal of his claims and a costs award was made against him. It also held that Rule 27 regarding the situation where a Claimant does not attend a hearing did not apply. The EAT held that the Employment Tribunal had erred. The fact that the Claimant said he would appeal, albeit no decision had been made, indicated he was not abandoning his claim. It should have asked him in terms if he was withdrawing his claims. If the answer was no it should have warned him of the action it could take under rule 27 if he did not remain. For the full judgment click here.

Evidence

HSBC v Gillespie UKEAT/0417/10/DA
The EAT gave guidance on the extent of the power of an Employment Tribunal to exclude evidence on the grounds that it is irrelevant or insufficiently relevant. Rosedale Mouldings Ltd v. Sibley [1980] ICR 816 was no longer good law. In the generality of cases the cost and trouble involved in a pre-hearing ruling on admissibility are unjustified and the issue should be dealt with in the course of the hearing. However there will be some cases where there are advantages in terms of economy (in the broadest sense of that term) in ruling out irrelevant evidence before it is sought to be adduced and, more specifically, in advance of the hearing. In the present case the Employment Tribunal erred in refusing to exclude a number of allegations which occurred a number of years earlier and related to different individuals which were "background" to the claims of sex discrimination. In the circumstances of the case and the time and costs that they would involve, the allegations did not have sufficient relevance and would be excluded. For the full judgment click here.

Mehta v Chid Support Agency UKEAT/0127/10/CEA
It was not unfair for the Employment Judge to read the Claimant's statement when the Respondent's witnesses had had the opportunity to read their statements aloud, and where the Claimant had agreed to the proposal. The EAT gave general guidance on the approach to be taken with regard to the way in which witness statements are dealt with. In particular it advised that where the practice exists that all witness statements of all witnesses are routinely read aloud whatever the circumstances, it should be reconsidered. For the full judgment click here.

Statutory grievance procedures

Parmar v East Leicester Medical Practice UKEAT/0022/10/RN
The statutory grievance procedures apply to acts of post-employment victimisation. For the full judgment click here.

Unfair dismissal

Roberts v Acumed Ltd UKEAT/0466/09/DA
To establish that the reason for the dismissal was under s98(1)(b) Employment Rights Act 1996 the employer only has to show that, in the present case, their business reason for dismissal to effect changes in terms of employment could justify the dismissal and not that it is essential. The balancing exercise of the needs of the employer and the detriment to the employee is considered at the next stage of determining whether the dismissal was fair in all the circumstances. In the present case the Employment Tribunal had not erred in finding that the dismissal was not unfair under normal principles, however it had erred in finding that because the basis for the Claimant's commission payments was different from that of the other four Area Sales Managers he was not an employee in the same category or description as theirs and therefore under Regulation 4(1)(a) Employment Act 2002 (Dispute Resolution) Regulations 2004 the statutory disciplinary and dismissal procedures did not apply. 'Description' or 'category' is to be determined by reference to job function and title and not as in this case differences in the remuneration package. Further, Regulation 4(1)(a) did not apply when there was only one employee in the category. Where an employer is contemplating dismissing an employee on notice 'before action is taken' in Step 2(1) is to be interpreted as 'before the employer serves notice of dismissal'. For the full judgment, click here.

Disability discrimination

Hinsley v Chief Constable of West Mercia Constabulary UKEAT/0200/10/DM
The Respondent did have the power under the Police Regulations 2003 to re-appoint the Claimant following her resignation while suffering from depression, without her first undergoing the normal recruitment process identified in Regulation 10, and on the facts it would have been a reasonable adjustment to do so. For the full judgment click here.

Rayner v Turning Point & ors UKEAT/0397/10/ZT
The Employment Tribunal had erred in its decision as to whether the Claimant was disabled by relying on an expert report which did not use the correct statutory approach. J v DLA Piper [2010] IRLR 936 applied. The EAT judge commented that if a condition of anxiety and depression is diagnosed by a GP which causes the GP to advise the patient to refrain from work, that that was in itself evidence of a substantial effect on day-to-day activities. Further a GP treating a condition such as depression over a long period of time is in a very strong position to give an authoritative view of materials relevant to the assessment of disability and sometimes may be in a better position than a consultant examining a Claimant on one occasion only. For the full judgment click here.

Religion or belief

Power v Greater Manchester Police Authority UKEAT/0087/10/ZT
The Employment Tribunal had not erred in holding that the Claimant's dismissal was not unlawful discrimination contrary to the Equality (Religion or Belief) Regulations 2003. The reason for his dismissal was the manifestation of his spiritualist beliefs, that is the delivery of posters and CD-ROMs which, although related to his beliefs, was found to be an unacceptable way of expressing them, and not the beliefs themselves. For the full judgment click here.

Whistleblowing

Fecitt & ors v NHS Manchester UKEAT/0150/10/CEA
The burden of proof is on the employer to show, where there has been a detriment, that it was not "on the ground of" a protect disclosure under s48(2) Employment Rights Act 1996. In doing so it has to prove that the detriment was "in no sense whatever" on the ground of the protected disclosure. Further the employer can be vicariously liable for the acts of its employees on normal principles. For the full judgement click here.

Working Time Regulations

Hughes v The Corps of Commissionaires Management Ltd UKEAT/0173/10/SM
In a case of security guards falling within Regulation 21(b) Working Time Regulations 1998, the worker who does not receive an uninterrupted rest break during a shift has to be provided with compensatory rest that is as near in character, quality and value to such a period as possible under Regulation 24(a). Although the Claimant had to be on call during his break, the requirements of equivalence and compensation had been met by the fact that he could take his break at any time and thus chose a time when he was least likely to be interrupted, and if he were interrupted he could begin the break again. For the full judgment click here.

National Minimum Wage

South Manchester Abbeyfield Society v Hopkins and Woodworth UKEAT/0079/10/ZT
Under Regulation 15(1A) National Minimum Wage Regulations 1999 housekeepers who were required to be on call overnight although "sleeping in" were only entitled to be paid for those on call hours when they were awake for the purpose of working. Further the Employment Tribunal did not have jurisdiction in a breach of contract claim to make an award of "£25,000 net" ie £25,000 plus tax and NI contributions. Its total jurisdiction was limited to £25,000. For the full judgment click here.

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