Employment Law Bulletin – Issue 95 – 19 January 2011

Wednesday 19 January 2011

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Court of Appeal

Arhin v Enfield Primary Care Trust [2010] EWCA Civ 1481
The Tribunal had not erred in finding that although unfairly dismissed for redundancy, the Claimant would not have been appointed to a new post created in the re-organisation and therefore was not wrong to reduce the compensatory award by 100%. Although the Respondent had not produced a detailed job specification, there was sufficient material before the Tribunal at the remedies hearing for it to form a tenable view of what the outcome of a fair competitive selection procedure would have been. For the full judgment click here.

Employment Appeal Tribunal

Unfair Dismissal

Victoria and Albert Museum v DurrantUKEAT/0381/09/DM
Section 106(2)(a) Employment Rights Act 1996 ("ERA") envisages a clear notice being given at the outset of a fixed term contract, so as to leave no doubt on the part of the employee as to the circumstances in which the contract will end. The information cannot be conveyed by a combination of the text of the written document and inferences drawn from the surrounding circumstances. However even if s106 might otherwise be engaged, the reason for dismissal might still be redundancy and not some other substantial reason, particularly bearing in mind the impact of section 163(2) ERA, for example when an employee has been "bumped" into the temporary post. Section 106 only applies where there is no other reason for dismissal than to facilitate the return of the woman from maternity leave. For the full judgment, click here.

Johnson v RollerworldUKEAT/0237/10/JOJ
While there was nothing wrong in a Tribunal deciding that although unfairly dismissed, the Claimant would only have continued in employment for a period of months, if it is contemplating a dismissal as being the event which gives rise to the end of compensation which would otherwise continue, it must necessarily be contemplating a fair dismissal. O'Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 615 applied. For the full judgment, click here.

Working Time

Arriva London South Ltd v NicolaouUKEAT/0280/10/DA
The Claimant claimed he had been subjected to a detriment for having refused to forego his right to a 48 hour week contrary to s45A ERA. He was not allowed to work rest days as he had not agreed to opt-out of the provisions of the Working Time Regulations 1998 under Regulation 4(1). It was clearly a detriment, however the Tribunal had failed to consider whether the reason for the refusal came under Regulation 4(2) which imposes a qualified duty on the Respondent to take steps to ensure the regulations are not breached in respect of a person who is protected by them and must be read together with Regulation 4(1). For the full judgment, click here.

TUPE

Zaman & ors v Kozee Sleep Products Ltd t/a Dorlux Beds UK Ltd UKEAT/0312/10/CEA
The cap on "a week's pay" under section 227 ERA does not apply to awards for compensation under Regulation 15 (8) Transfer of Undertakings (Protection of Employment) Regulations 2006 for breach of the information and consultation obligations. Although Regulation 16 (4) does cross-refer to a group of sections in the Employment Rights Act 1996 of which s227 forms part, this only means is that it is necessary to apply the provisions of s227 so far as applicable. There is nothing in the provisions that refers to the award of appropriate compensation under Regulation 15. Further, it was generally accepted under the previous version of TUPE (which was in force from 1982) that the cap did not apply to payments made under the equivalent of Regulation 15 (8). If there had been an intention to change that position, one would have expected it to be clearly flagged. For the full judgment, click here.

Equal Pay

Dundee City Council v McDermott & orsUKEATS/0026/10/BI
Where comparators in the ET1 were materially different from comparators specified in the statutory grievances letter and the Tribunal had not carried out a qualitative exercise to assess correlation of complaints, it had erred in law in holding that the requirements of section 32 Employment Act 2002 had been satisfied. Unlike Arnold v Sandwell Metropolitan Borough Council [2009] IRLR 12, comparators had been specified in the Claimants' grievances. Cannop and others v Highland Council sub nom Highland Council v TGWU and others [2008] IRLR 634 and Brett & Others v Hampshire County Council UKEAT/0500/08 applied. For the full judgment, click here.

Sexual Orientation Discrimination

Lisboa v Realpubs Ltd & orsUKEAT/0224/10/RN
When considering whether Respondent's policy of encouraging a wider clientele at a formerly gay pub involved less favourable treatment of gay customers causing the Claimant to resign in circumstances amounting to discriminatory constructive (and wrongful) dismissal, the Employment Tribunal fell into error in focussing on the (legitimate) commercial aims of the Respondent and not the potential discriminatory effect of the implementation of the policy, that is whether gay customers would or might reasonably take the view that, as a result of the measures adopted, they were disadvantaged compared with straight customers. A policy of discrimination against customers on grounds of sexual orientation is rendered unlawful by regulations 3 and 4 of the Equality Act (Sexual Orientation) Regulations 2007. For the full judgment, click here.

Whistleblowing

Meares v Medway Primary Care TrustUKEAT/0065/10/JOJ
The Tribunal had not erred in finding that an allegation of bullying and harassment made in a letter to the Claimant's manager was not a protected disclosure under section 43C(1) ERA as it was not made in good faith but out of personal antagonism. Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687 applied. Although the issue of good faith had not been raised specifically in the ET3, whether there was a protected disclosure under s43C was an issue at the CMD, it had been put, although not using those words, in cross-examination and the Claimant had had a proper opportunity to answer the allegation before the Tribunal made its decision. Doherty v British Midland Airways Limited [2006] IRLR 90. For the full judgment, click here.

Part-time Pensions

Copple & ors v Littlewoods Plc & orsUKEAT/0116/10/ZT
The Claimant women were unlawfully excluded from an occupational pension scheme as part-timers, but they would never have joined therefore there was no corresponding loss. Those who would not have opted to join the scheme were not entitled to the declaration of admission to the scheme. For those who succeeded, the declarations endure only for the closed period. The purely discretionary remedy of a declaration is not inconsistent with EU law. For the full judgment, click here.

Legislation

Default Retirement Age
The Government intends to introduce new regulations so that from 6 April 2011, subject to Parliamentary procedures, employers will no longer be able to issue notifications of retirement using the DRA procedure at age 65. If notifications have already been made prior to 6 April, employers will be able to continue with the retirement process as long as the retirement is due to take place before 1 October 2011. No retirements using the DRA procedure will be possible after 1 October 2011. For the Government response to the consultation, click here.

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