Employment Law Bulletin – Issue 97 – 1 March 2011

Tuesday 1 March 2011

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Court of Appeal

Unfair Dismissal

Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63
The Court of Appeal over-turned the EAT decision that the Employment Tribunal had substituted its opinion for that of the Respondent when finding that the Claimant had been unfairly dismissed for making an inappropriate comment when restraining a patient. Although the opinions of the experienced professionals who decided that summary dismissal was appropriate should be respected, having done so, it was for the Employment Tribunal to decide whether their views represented a reasonable response to the Claimant's conduct. For the full judgment, click here.

Jones v Neath Port Talbot County Borough Council [2011] EWCA Civ 92
In circumstances where the governing body gave no notification to the LEA under Regulation 17 of The Staffing and Maintained Schools (Wales) Regulations 2006, but the LEA dismissed the Claimant in any event it is arguable that the notice of dismissal will not be deemed to have been given by the governing body under Art 3 or Art 4 of the Education (Modification of Enactments Relating to Employment) (Wales) Order 2006. If so, there is no prohibition against the LEA being made Respondent in its capacity as employer. Kent County Council v Green [2004] EWCA Civ 11, [2004] ELR 75 distinguished. For the full judgement, click here.

Territorial Jurisdiction

British Airways Plc v Mak & Ors [2011] EWCA Civ 184
The Claimants were former cabin crew members of Chinese national origin who were based and ordinarily resident in Hong Kong and served on BA flights between Hong Kong and Great Britain. Their time in Britain was included turn around and some training time. The Court of Appeal held that in the circumstances the employment was to be regarded as being "at an establishment in Great Britain" for the purposes of their discrimination claims. The jurisdiction existed as a result of the statutory process of deeming their employment to be at an establishment in Great Britain under s8(1) Race Relations Act 1976. For the full judgment, click here.

Employment Appeal Tribunal


Kerr V Ernst & Young Services Ltd & ors UKEAT/0567/10/RN
The Employment Judge did not have the power to determine at a case management hearing that claims for sex and disability discrimination such not be allowed to proceed in relation to allegations against named persons which it was claimed formed part of a continuing act. This was in effect a strike out under Rule 18(7)(f) and in any event the Appellant should have been given notice that such an order may be made and allowed to make submissions on the issue before the decision was made. It was not sufficient that submissions on the matter were allowed in a review. In any event the order which was made, on the evidence and the materials before the judge, was such that no reasonable Employment Tribunal could have made. For the full judgment, click here.


G4S Security Services (UK) v Rondeau UKEAT/0207/09/DA
Costs were awarded against the Claimant on the basis of unreasonable conduct where he had previous refused to accept offers of settlement by the Appellant in the same terms as were accepted at the door of the hearing of the EAT, and had not made any counteroffer. A Claimant who has a judgment in their favour is entitled to resist an appeal unless and until there is either an event, an outcome of the appeal, or an offer which requires to be considered. For the full judgment, click here.


Greenwood v NWF Retail Ltd UKEAT/0409/09/JOJ
There will be an error of law if the written reasons of the Employment Tribunal fails to comply with Rule 30(6). The EAT advised the setting out judgments in a structure that clearly recognises and demonstrates both the formal and substantial requirements of the rule. In so far as Short v Hayman UKEAT/0379/08/CEA can be read as suggesting that a decision may not be erroneous despite non-compliance with the rule, it would not be followed. Meek remains a helpful guide as to whether the rule has been substantially complied with. For the full judgment, click here.

Variation of Contract

Morgan v Network Europe Group Ltd UKEAT/0159/10/SM
As a new term in the Respondent's handbook regarding lay off was not specifically drawn to the Claimant's attention; and in the absence of a signed second statement of terms and conditions incorporating the new handbook, there was no express agreed variation. For the full judgment, click here.

Insolvency and TUPE

OTG Ltd v Barke & ors UKEAT/0320/09/RN
In a number of joined appeals, the EAT held that Administration proceedings pursuant to Schedule B1 of the Insolvency Act 198, which are commonly used as a quick and convenient means of liquidating the assets of the business in the interests of the creditors by way of a so-called "pre-pack, are not capable of constituting "bankruptcy ... or ... analogous insolvency proceedings which have been instituted with a view to the liquidation of the assets of the transferor" within the meaning of reg. 8 (7) of TUPE and Article 5.2 of the consolidated Acquired Rights Directive, with the consequence that on a sale of the company by an administrator, Regulations 4 and 7 of TUPE will apply, so that employment is transferred. Oakland v Wellwood (Yorkshire) Ltd. [2009] IRLR 250 not followed. For the full judgment, click here.

Date of Dismissal

Wason & Wason v Holborn Community Association UKEAT/0263/10/DA
The Employment Tribunal had not erred in finding that the employer had accepted the Claimant's repudiatory conduct in not turning up for work for a number of months by no longer paying them and obviously employing someone else to do their work. The argument that the acceptance had not been directly communicated and therefore time had not started to run for a claim of breach of contract had "lost sight of reality". The EAT held that it was inconceivable that any person who is not providing work and who is not receiving pay for work, who has been required to return to work but refuses to do so, does not realise that he is not in employment unless there is some particular explanation for what has happened. For the full judgment, click here.

Unfair Dismissal

Liberty Living plc v Reid UKEATS/0039/10/BI
The Employment Tribunal had not substituted its own view for that of the employer when finding that the Claimant was unfairly dismissed for drinking alcohol during a break outside of work premises. The disciplinary policy only stated that being under the influence of alcohol during working hours was gross misconduct and the investigation and disciplinary hearings had not established this was the case. Although there was a drugs and alcohol policy which prohibited the consumption of alcohol "while performing Company business or in the workplace" the Claimant was not aware of it and there was confusion about which policy was being applied. For the full judgment, click here.

Vision Security Group Ltd t/a VSG v Goodyear UKEAT/0307/10/JOJ
The employer's advocate did not raise a Polkey argument at the Employment Tribunal as to why it would have dismissed the Claimant at the time or shortly thereafter had it followed a fair procedure, and the EAT refused to allow it to be raised on appeal. The Employment Tribunal considered the matter nevertheless and held that Polkey did not apply as the dismissal procedures had been so flawed. This was not an error. For the full judgment, click here.

National Minimum Wage

Chassis & Cab Specialists Ltd v Lee UKEAT/0268/10/JOJ
On the evidence before it the Employment Tribunal should have found the Claimant was employed on a contract of apprenticeship under Regulation 12(2) and that the National Minimum Wage did not apply. Flett v Matheson [2007] IRLR 277 followed. For the full judgment, click here.

Sex Discrimination

Ministry of Defence v Kartner UKEAT/0242/10/DM
Despite the Respondent's statement of policy to the contrary, the Employment Tribunal was on the evidence entitled to come to the conclusion of fact that there was a practice or criterion which at least gave preference in promotion to those who were seagoing as opposed to those who were not, the non sea-going group consisting only of women. In relation to direct discrimination, the Employment Tribunal had failed to make adequate findings on the reason why the Claimant had been unsuccessful in her application. For the full judgment, click here.


Compulsory Retirement Age

The government has published draft regulations abolishing the compulsory retirement age. They can be found here.


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