Employment Law Bulletin – Issue 96 – 2 February 2011

Wednesday 2 February 2011

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Court of Appeal

Unfair dismissal

Orr v Milton Keynes Council [2011] EWCA Civ 62
The knowledge of persons other than those appointed directly to deal with the process of investigation and dismissal of employees cannot be imputed to the corporate employer under section 98(4) Employment Rights Act 1996. In the present case this meant that mitigating factors not known to the dismissing officer did could not render the dismissal unfair. For the full judgment, click here.

Discrimination

X v Mid Sussex Citizens Advice Bureau & Ors [2011] EWCA Civ 28
The Claimant's post as volunteer advisor for the Respondent was not an "occupation" within the meaning of Article 2 of the Framework Directive, neither was it a relevant arrangement for the purpose of determining who should be offered employment under s4(1) Disability Discrimination Act 1995, as the appointment of volunteers was not to create a potential pool from which full time staff could be drawn. Obiter - there is on the face of it a strong argument that Kucukdeveci v Swedex PNBH [2010] IRLR 346 would permit the Framework Directive to be directly enforced between private parties. For the full judgment, click here.

Southern Cross Healthcare Co Ltd v Perkins & Ors [2010] EWCA Civ 1442
Tribunals do not have jurisdiction to construe contractual terms and conditions contained or referred to in written statements of particulars under s11-12 Employment Rights Act 1996. For the full judgment, click here.

Employment Appeal Tribunal

Stay or postponement

Mindimaxnox LLP v Gover & Ho UKEAT/0225/10/DA
The Employment Judge erred in failing to stay proceedings in the Employment Tribunal when there were concurrent proceedings in the High Court. The authorities indicate where there is a very substantial factual dispute the proceedings are more appropriately to be brought in the High Court. In this case given the substantial overlap between the two sets of proceedings it was appropriate to cede to the High Court. The EAT also confirmed that a declaration a Tribunal is empowered to give for unfair dismissal is valuable in its own right. For the full judgment, click here.

Statutory grievance procedure

Shaw v B&W Group Ltd UKEAT/0110/10/JOJ
The Tribunal erred in holding that a breach of contract claim did not fall within Regulation 15 Employment Act 2002 (Dispute Resolution) Regulations 2004. The Claimant had set out a written grievance complaining of breach of contract within three months of the effective date of termination of his employment. Time for presentation of the breach of contract complaint should therefore have extended for a further three months by application of Regulation 15. However there could be not extension of time for the constructive dismissal as even though a grievance had been lodged the repudiatory breach alleged was that the Respondent was contemplating dismissal. South Kent College v Mr J Hall UKEAT/0087/07/LA and Regulation 6(5) applied. For the full judgment, click here.

Unfair dismissal

Morgan v The Welsh Rugby Union UKEAT/0314/10/LA
When considering whether a dismissal was fair when there is a business re-organisation leading to employees in competition for a remaining post, a Tribunal is entitled to consider how far an interview process was objective; but it should keep in mind that an employer's assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment. A Tribunal is entitled to take into account how far the employer established and followed through procedures when making an appointment, and whether they were fair, and whether an appointment was made capriciously, or out of favouritism or on personal grounds. Ralph Martindale & Co v Harris UKEAT/0166/07 considered. In the instant case the fact that the Respondent had not adhered to the job description precisely did not mean the dismissal was unfair. For the full judgment, click here.

Harassment

Conteh v Parking Partners Ltd UKEAT/0288/10/SM
Under section 3A Race Relations Act 1976, "unwanted conduct" can (but not necessarily will) include inaction, but that conduct has to be taken on the grounds of race or ethnic or national origins if it is to create the hostile environment and thereby come within the heading of harassment. It is not enough that the employer fails to act in relation to harassment by third parties even if that conduct is "inherently racist". For the full judgment, click here.

Reasonable adjustments

Royal Bank of Scotland v Ashton UKEAT/0542/09/LA
The provisions of the Disability Discrimination Act 1995 in relation to reasonable adjustments require the Tribunal to take an objective view of the potential effect of the adjustment contended for. The thought processes an employer has gone through in relation to a potential adjustment are unlikely to be relevant in all but a few cases. In the present case the Tribunal had erred in finding the Respondent had failed to make a reasonable adjustment by withdrawing sick pay from the Claimant. It had failed to consider the nature of the substantial disadvantage to which that provision or practice was said to have given rise. Unless that was identified, then it was not possible to know whether any adjustment was reasonable because it would have to have a practical effect on the disadvantage. On its face no one, whether disabled or otherwise, was advantaged or disadvantaged compared to any other because they were all subject to the same policy. The correct comparator was someone who was in the same circumstances but for the disability. To the extent that someone who was disabled might suffer further periods of sickness than the non disabled, the sickness policy provided in the Claimant's case that she should continue to receive full pay. For the full judgment, click here.

Age discrimination

Hadfield v HSE UKEATS/0013/10/BI
The Tribunal did not err in striking out the Claimant's claim that lack of actuarial adjustment in the Civil Service Pension Scheme in respect of retirement after age 60 amounted to age discrimination as it had no reasonable prospects of success. For the full judgment, click here.

Compensation

University of the Arts London v Rule UKEAT/0245/10/CEA
In an oral judgment the Tribunal awarded certain sums and gave the parties the opportunity for calculating others, such as loss of earnings, and awarded an uplift of 45%. The figures were agreed the following day but prior to returning to the Tribunal the Appellant made an express bank transfer of the sum (apart from the uplift) agreed, and relied on Arrow v Onley [2009] UKEAT0507/88 to seek to avoid the uplift. The EAT held that the oral judgment was an award, Arrow did not apply to a payment in such circumstances. In the present case the uplift was applied to a grossed up figure for earnings. This was not an error. It is for the Respondent to argue before the Tribunal why this should not occur and can be avoided by agreement of a tax indemnity or a reduction in the uplift to reflect circumstances where this might result in injustice. For the full judgment, click here.

Right to be accompanied/employment status

Bullock v Norfolk County Council UKEAT/0230/10/RN
The Employment Tribunal did not err in holding that the Claimant, a foster carer, was not a worker within the meaning of the Employment Rights Act 1996 and 1999. Accordingly she could not claim the right to trade union representation pursuant to section 10 of the Employment Rights Act 1999 at a meeting of a Fostering Panel which was to consider withdrawing her approval as a foster parent. Rowlands v City of Bradford Metropolitan District Council [1999] EWCA Civ 1116 applied. For the full judgment, click here.

Equal pay

Bury Metropolitan Borough Council v Hamilton UKEAT/0413-5/09/ZT
In equal pay claims by female local authority employees regarding the benefit of bonus paid to male colleagues under purported productivity bonus schemes, although the Tribunal was wrong to characterise the reason given for the disparity in pay as a "sham", its underlying finding that the link between productivity and receipt of bonus had been lost meant that the non-payment of bonus to the Claimants could not be justified and that since the difference in gender break-down between the groups of employees who did and did not receive bonus gave rise (save in those groups) to Enderby-type prima facie indirect discrimination the Respondent's defences under section 1 (3) failed. The Claimants' cross-appeal succeeded in that they were in principle entitled to payments by way of pay protection calculated by reference to the bonus payments which they should have received. For the full judgment, click here.

Whistleblowing

On Wednesday 6 January 2011 Garden Court Chambers hosted the launch of The Whistleblower: Sex Trafficking, Military Contractors, and One Woman's Fight for Justice by Kathryn Bolkovac, a former UN Human Rights Investigator. To view the event and debate on whistleblowing, click here.

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