Employment Law Bulletin – Issue 98 – 17 March 2011

Thursday 17 March 2011

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Court of Appeal

EAT Procedure

Korashi v Abertawe Bro Morgannwg University Local Health Board [2011] EWCA Civ 187
In the circumstances, the invitation to the Employment Tribunal to supplement its written reasons under the Burns/Barke procedure, by the use of extensive questioning was close to exceeding the ambit of discretion that the procedure allows. However, while the case as close to the borderline it fell on the permissible side of it. For the full judgment, click here.

Territorial jurisdiction

Ministry of Defence v Wallis & Anor [2011] EWCA Civ 231
Claims for unfair dismissal and sex discrimination by the spouses of armed service personnel who had applied for, were taken on and employed by the Respondent outside of Great Britain to work at schools which were part of NATO HQs did fall within the jurisdiction of the Employment Tribunal. The Tribunal was entitled to find on the facts that there were clear, firm and sound connections with Britain that brought them under class (iii) of expatriate employees in Serco. The sex discrimination claim was properly based on the direct effect of the Equal Treatment Directive either by a compatible construction of s10 Sex Discrimination Act 1975 or by disapplying the territorial limitations incompatible with the enforcement in this country of their rights under the Directive. For the full judgment, click here.

Unfair dismissal

Fuller v London Borough of Brent [2011] EWCA Civ 267
There had been no error of law in the Employment Tribunal's judgment that the Claimant was unfairly dismissed and the EAT was not entitled to set it aside or to dismiss the claim. Even if there was an error of law because the wrong legal test was applied, the EAT did not find that the ET decision was perverse. In those circumstances the proper course for the EAT in this case was not to dismiss the claim, but to set aside the decision and to remit the matter to a different Tribunal for a rehearing at which the reasonable responses test would be applied. For the full judgment, click here.


Ward v Ashkenazi [2011] EWCA Civ 172
The Employment Tribunal did not misdirect itself in relation to s123 Employment Rights Act 1996 ("ERA") by referring to an award which was "just" instead of "just and equitable". Further the Tribunal had not erred, on the facts it found, from awarding compensation only for a reasonable notice period as the Claimant would have been dismissed in any event, if not for the automatically unfair dismissal. The Tribunal did not have to consider whether the future dismissal would have been "fair" as the Claimant would have been dismissed before she had established one year's continuous service. For the full judgment, click here.

Employment Appeal Tribunal

Statutory grievance procedure

West Dunbartonshire Council v Smith & ors UKEATS/0029/10/BI
Where comparators in the claim form were different from comparators specified in earlier grievances and some forms contained some "equal value" claims by reference to comparators who were not said to do work of equal value in grievances but were said to do "work rated as equivalent", the Employment Tribunal had erred as it had not carried out a qualitative exercise to assess correlation of complaints. For the full judgment, click here.

Raithatha v Leicester City Council UKEAT/0303/10/SM
Although an ET1 could not itself constitute a stage 1 grievance, if its particulars were subsequently incorporated into a letter that it could meet the statutory requirements and constitute a grievance for a subsequent ET1, and in these circumstances it did so. The inclusion of a claim as well as a complaint in the grievance does not undermine its status. For the full judgment, click here.

Time limits

Remploy Ltd v Brain UKEAT/0465/10/CEA
Where the Claimant had not put in a claim for unfair dismissal in time as she had no knowledge of the time limit and had taken informal advice from a solicitor that she should exhaust the internal appeal procedure fist, it was open to the Employment Judge to conclude (having taken all other material factors into account) that it was not reasonably practicable for this particular Claimant to bring her claim within the three month period. For the full judgment, click here.

Review of Default judgment

Bournemouth Borough Council v Leadbeater UKEAT/0010/11/SM
Under Rule 33 (2) it is mandatory to request an extension of time for serving a Response when requesting a review of default judgment. The mere fact that an out-of-time review is made, does not mean that it includes implicitly an application to serve such a response. The task of an Employment Judge is to consider carefully what is said to be a request to extend the time for lodging a Response in order to ascertain if an application to extend time can be discerned from the application. When considering whether the default judgment should be set aside the appropriate principles are not merely those set out in Rules 33(5) and (6) but also those set out in Kwik Save Stores Ltd v Swain [1997] ICR 49. For the full judgment, click here.

Fraud and illegality

Pickard v Lynn Hughes t/a The Tanning & Beauty Kabin UKEAT/0185/10/LA
The Employment Judge erred in dismissing the Claimant's claim on the basis that it was tainted by illegality. While the point had not been pleaded or otherwise taken by the Respondent, the judge had been in principle entitled to consider it himself. However, he had failed to give adequate reasons for the existence of illegality and there was no examination of the Claimant's knowledge or state of mind about the arrangement under which she was paid cash-in-hand. The fact that it was possible that she was "not bothered" whether the Respondent was paying tax or not was wholly inconsistent with a finding of participation. For the full judgment, click here.

Unfair dismissal

Sakharkar v Northern Foods Grocery Group Ltd t/a Fox's Biscuits UKEAT/0442/10/ZT
The essential question under s98(4) ERA is whether the employer acted reasonably in dismissing the employee, not whether the employer was right. The fact that the employer is or may be mistaken is relevant but not conclusive. In the case when a dismissal is the sanction for breach of an absence policy, as with misconduct cases, the same principle applies. The Employment Tribunal correctly proceeded upon this view of the law. However it erred in finding that despite the error in the previous operation of the policy which had resulted in a third stage warning and therefore put the Claimant subsequently at risk of dismissal, the decision to dismiss was reasonable. In particular the Tribunal had failed to consider the role of the personnel department, which comprised part of the Respondent's "administrative resources" in the error. For the full judgment, click here.

Davies v Sandwell Metropolitan Borough Council UKEAT/0416/10/DA
The Employment Tribunal misdirected itself in regarding as relevant the fact that there had been no appeal against a final warning, which was a crucial element in the decision to dismiss. Co-Operative Retail Services Ltd v Lucas considered. In any event in this case the reason for the appeal not being pursued did not involve any explicit or implied admission that the allegations made against the Claimant were true. For the full judgment, click here.

Disability discrimination

Ahmed v Metroline Travel Ltd UKEAT/0400/10/JOJ
The Employment Tribunal had not erred in finding that the Claimant was not disabled. The issue turned on the credibility and reliability of the Claimant's account of his injury and its effects upon him and the Tribunal did not accept his evidence. In the circumstances it was not an error to refer expressly to the 2006 Guidance. For the full judgment, click here.

Burke v The College of Law and The Solicitor's Regulation Authority UKEAT/0301/10/SM
The Employment Tribunal had not erred in finding that the requirement that the claimant take his LPC examinations within particular time periods was a competence standard under s14A(5) Disability Discrimination Act 1995 and as such pursuant to s14B there was no requirement to make a reasonable adjustment. For the full judgment, click here.

Sexual orientation discrimination

Thomas Sanderson Blinds Ltd v English UKEAT/0316/10/JOJ
The Employment Tribunal had not erred in considering the Claimant's own perceptions and feelings in order to decide whether the alleged unwanted conduct had the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. Richmond Pharmacology v Dhaliwal [2009] IRLR 336 applied. However it had erred in allowing a review on an issue which the Claimant had not pursued at the hearing. For the full judgment, click here.

Sex discrimination/equal pay

Hosso v European Credit Management Ltd UKEAT/0475/09/CEA
On the facts found, the Respondent's share option scheme was truly discretionary, and as a result the claim fell under the Sex Discrimination Act 1975 and not the Equal Pay Act 1970. For the full judgment, click here.


Equal pay

Ashby & Ors v Birmingham City Council [2011] EWHC 424 (QB)
A court considering whether to strike out an equal pay claim or counterclaim under Section 2(3) Equal Pay Act 1970 engages in a two stage process. First it will decide whether the claim could more conveniently be disposed of separately by an Employment Tribunal. If the court concludes that it was, it will then decide whether to exercise discretion to strike out the claim. The fact that the Claimants were out of time for bringing the claims in the Employment Tribunal could be a factor affecting the convenience of the Tribunal as a forum for equal pay claims or one affecting the Judge's discretionary decision to strike out such claims in the County Court. The reasons why proceedings had not been issued in the Employment Tribunal in time would be relevant to the decision. For the full judgment, click here.


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