Employment Law Bulletin - Issue 94 - 21 December 2010

Tuesday 21 December 2010

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Court of Appeal


Devon and Somerset Fire and Rescue Service v Tilke [2010] EWCA Civ 1402
The Respondent was successful in its appeal to the EAT on a finding of unfair constructive dismissal save that the EAT remitted the matter to the same Employment Tribunal for re-hearing. The Court of Appeal held that in the circumstances it was wrong to do so. The EAT had allowed the appeal on the basis that although there had been a breach of the implied term of trust and confidence the Employment Tribunal was wrong to consider the breaches still operative after a period of 12 months when the Claimant resigned. The Court of Appeal held that by continuing in employment for such a long time the Claimant had affirmed her contract of employment. For the full judgment, click here.

Strike Out

A v B & Anor [2010] EWCA Civ 1378
The Respondent had not demonstrated that the Claimant's claim had no prospect of success. The Claimant was allegedly dismissed for gross misconduct but she claimed it was due to her instituting a grievance alleging sexual harassment. In a strike out application the facts relied on in support of the claim must be taken to be provable, unless the opposite can be shown by clear evidence which is not seriously disputable. In the circumstances there were relevant issues of fact to be determined, as to which the outcome could not properly be foreseen, in particular as there was a reverse burden of proof in relation to claims of sex discrimination.
For the full judgment, click here.


Galloway v Barnet Enfield & Haringey Mental Health NHS Trust [2010] EWCA Civ 1368
There was no apparent bias where the wing member had previously worked for an NHS Trust as Director of HR. He had never worked for the Respondent or had any connection with it nor had he had any regional or national responsibility within the NHS. For the full judgment, click here.

Employment Appeal Tribunal


Yerrakalva v Barnsley Metropolitan Borough Council UKEAT/0231/10/RN
The act of withdrawal does not itself constitutes an acknowledgment that a Claimant's case was misconceived or otherwise as in itself giving grounds for an award of costs. While such a conclusion may well be appropriate in the circumstances of a particular case, it is important that there should be no general rule to this effect, not least because such a rule would be a powerful disincentive to parties in an appropriate case taking a sensible and responsible decision to withdraw. In the instant case, although lies can be unreasonable conduct justifying an award of costs and the amount of costs, the Employment Tribunal had failed to consider "the nature, gravity and effect". Although there does not have to be a precise causal relationship between the unreasonable conduct and the costs claimed, any award of costs must, at least broadly, reflect the effect of the conduct in question. McPherson v BNP Paribas [2004] ICR 1398 applied. For the full judgment, click here.

Roberts v Carlin UKEAT/0183/09/DA
After the Claimant had given evidence in her claim for sex discrimination the Employment Judge told the Respondent she had 'a very steep hill to climb' and suggested her counsel speak to the other side. When no agreement was reached, before hearing the Respondent's case, the Employment Judge said the Respondent commented words to the effect 'let's hope they don't rue the day'. The EAT held that, although close to the borderline, the comments were a preliminary indication rather than demonstrating a closed mind. For the full judgment, click here.

Neafsay v Small & ors UKEATPA/0828/10/JOJ
The Employment Tribunal had failed to give adequate details of the non-compliance with the order which led to the award of wasted costs against the Claimant's solicitors or why it was unreasonable or negligent. For the full judgment, click here.

Territorial Jurisdiction

Pervez v Macquarie Bank Ltd (London Branch) UKEAT/0246/10/CEA
A Claimant employed by a Hong Kong company who was seconded to work in London for associated company could bring claims in the Employment Tribunal even though the acts complained of took place overseas. It was necessary to give an extended meaning to the phrase "carry on business" in Regulation 19 (1) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 in order to avoid a result in which under Regulations the Employment Tribunal was unable to determine claims in respect of which the primary legislation had conferred jurisdiction on it. For the full judgment, click here.

Practice and Procedure

KRD Property Maintenance Ltd v O'Donnell UKEATS/0016/10/BI
Where one party is unrepresented and the Employment Tribunal decides that there is an issue arising in the case on which they may make a finding in fact, particularly if it has potential to favour the unrepresented party, it must advise the represented party at the earliest opportunity and put the issue to the relevant witness. Aptuit (Edinburgh) Limited v Kennedy UKEATS/0057/06 considered. For the full judgment, click here.

Employment Status

Kuncharalingham v Word by Word Translations Ltd UKEAT/0269/10/SM
Where an interpreter who was able under the contract and did on a number of occasions send a substitute to carry out assignments, sometimes without informing the Respondent in advance, there was no contract for personal service and he was therefore neither a worker nor an employee. For the full judgment, click here.

Race Discrimination

ISS Mediclean Ltd v Elkiyari UKEAT/0205/10/ZT
An Employment Tribunal may be entitled to find what was the reasonable belief of the employer as to the reason for dismissal, on the one hand, but entitled to conclude, by virtue of the application of the reverse burden of proof and the failure of the employer to discharge that burden, that the reason was also a reason that related to race discrimination. The reason for dismissal in the instant case was a reasonable belief in misconduct. The discriminatory treatment that was complained of was to dismiss the Claimant, a man of Moroccan origin, because it was believed that he had engaged in that conduct. However the Employment Tribunal erred in finding that the difference in treatment and the difference in national origin were alone sufficient to trigger the reverse burden of proof. For the full judgment, click here.


Martin v Devonshires Solicitors UKEAT/0086/10/DA
The EAT held that in principle a distinction can be made between subjecting a person to a detriment by reason of a complaint amounting to a protected act and by reason of the facts and features of the manner in which it was made, although Employment Tribunals should be slow to recognise a distinction between the complaint and the way it is made save in clear cases. In the present case the Employment Tribunal found the that Claimant suffered from a mental illness which led her to make claims of discrimination which she believed to be true but were false, and which she would not accept were false. These features, combined with the risk of further disruptive incidents were the reason for the dismissal and could be treated as separable from the making of the compliant. In the instant case the exclusion of allegations made in bad faith did not apply. Further the Tribunal had not erred in failing to set out the provisions on the burden of proof. It had made findings as to the reason for the treatment. For the full judgment, click here.


Page & Fawdington v Lakeside Collection Ltd t/a Lavender Hotels UKEAT/0296/10/SM
The Employment Tribunal had been entitled to find that the reason for dismissal by the insolvency practitioner was not the transfer but an economic, technical or organisational reason entailing changes in the workforce. The Claimants were made redundant because fewer managerial staff were required during the period of the administration. For the full judgment, click here.



Compensation limits in Employment Tribunal claims will increase as of 1 February 2011 under the Employment Rights (Increase of Limits Order) 2010. The limit on compensation for unfair dismissal increases to £68,400 and a "week's pay" for redundancy and basic awards rises to £400. For the full text, click here.


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