Employment Law Bulletin – Issue 99 – 31 March 2011

Thursday 31 March 2011

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Employment Appeal Tribunal

Amendment

Walsall MBC & Housing 21 Ltd v Birch & ors UKEAT/0376/10/JOJ
The Employment Tribunal had not erred in applying Selkent and granting permission to the Claimants to amend their equal pay claims to join the transferee to an existing claim for Equal Pay against the transferor, even though the claims had not been brought against the transferee within the required time limit. There is no rule of law that an amendment cannot be allowed because it would, if presented as a fresh claim, be time barred, including claims for equal pay. For the full judgment, click here.

Default judgment

Crouch v Ant Marketing Ltd & ors UKEAT/0031/11/LA
The Claimant applied for default judgment against the second Respondent in the circumstances where the ET3 when only the name of the first Respondent appeared in section 2.1 although heading of the Grounds of Resistance showed the names of both the First and Second Respondents respectively. The Employment Tribunal had not erred in finding that the Response was received and accepted on behalf of both Respondents. For the full judgment, click here.

Issue estoppel

Foster v Bon Groundwork Ltd UKEAT/0382/10/SM
The Claimant's first claim for a redundancy payment by lay off was dismissed as it was found he was still employed by the Respondent at the time of the claim and had subsequently been dismissed by retirement. The Claimant then brought further claims including claims for unfair dismissal. The Employment Tribunal held the claims were res judicata, as the first Tribunal had found there had been a retirement dismissal. The EAT held that issue estoppel did not apply as the finding as to the reason for the dismissal by the first Tribunal was not necessary for the decision as the claim was layoff, and it had not had jurisdiction to deal with a redundancy as it was premature. Further, there was no abuse of process as there was no oppressive conduct or harassment of the Respondent by the Claimant. For the full judgment, click here.

Employment Status

Knight v BCCP Ltd UKEAT/0413/10/JOJ
The Claimant was a licensed private hire driver. He provided his car, paid the insurance and all running costs. The Respondent paid mileage rates for the work it gave him, but he had to pay his own tax and national insurance contributions. He did not have any set working hours and gave evidence that although he expected that he was given a certain number of hours work there was no obligation to do so. The Employment Tribunal had therefore not erred in finding that he was not an employee, although he was a worker. For the full judgment, click here.

Unfair dismissal

Ministry of Justice v Sarfraz UKEAT/0578/10/ZT
The Employment Judge had erred in making an order for interim relief under sections 128 to 129 Employment Rights Act 1996 in the case of an alleged whistleblower dismissal as he had failed to consider whether it was likely that a Tribunal would find that the Claimant's belief that the matters disclosed tended to show breaches of a legal obligation was reasonable, and it was not likely that it would do so. Taplin v C Shippam Limited [1978] ICR 1068 applied. For the full judgment, click here.

Disability discrimination

Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0352/09/DM
The EAT overturned the Employment Tribunal decision that the Respondent had failed to make a reasonable adjustment by failing to take steps to facilitate an application for ill-health retirement. The EAT considered that it was hard to envisage a case where the duty under section 4A Disability Discrimination Act 1995 extends to enabling a disabled employee who is no longer able to do the work (or any available alternative) to leave the employment on favourable terms. The whole concept of an adjustment involves a step or steps which make it possible for the employee to remain in employment and does not extend to compensation for being unable to do so. For the full judgment, click here.

Victimisation

Parmer v East Leicester Medical Practice UKEAT/0490/10/JOJ
Statements in witness statements served in a prior discrimination claim cannot form the basis for a subsequent claim for victimisation as they enjoyed judicial proceedings immunity Health v Commissioner of Metropolitan Police applied. There was no inconsistency with the jurisdiction to award aggravated damages in respect of conduct in the course of proceedings. Zaiwalla & Co v Walia [2002] IRLR 697 distinguished. For the full judgment, click here.

Equal pay

The Audit Commission v Haq & ors UKEAT/0123/10/LA
The immediate cause of the disparity in pay complained of was clearly the fact that all the employees concerned were affected by an amalgamation of their jobs and came into the new role preserving their previous remuneration. There was no reason to believe that those differences in previous remuneration were themselves discriminatory, therefore the issue of indirect discrimination did not arise. Even if were characterised as Enderby-type discrimination, it was justified by the pay protection policy. A pay protection policy could be a proportionate means of achieving a legitimate aim provided that, as here, it did not incorporate past discrimination. For the full judgment, click here.

Fresh evidence on appeal

World of Home Improvements Ltd v Cooper-Frewer UKEAT/0248/10/DA
Fresh evidence on appeal, that is the Claimant's letter of appointment setting out his terms and conditions, was allowed as it related to a matter which was not in issue at the original hearing but one which the Employment Tribunal nevertheless adjudicated upon in its decision. As a result of the new evidence the award under s38 Employment Act 2002 was set aside. For the full judgment, click here.

Iteshi v London Borough of Hammersmith & Fulham UKEAT/0491/10/DM
A claim was judged at a PHR, which the Claimant did not attend, to be out of time as it was date stamped by the Employment Tribunal one day after the time limit expired. On appeal the Claimant sought to introduce the automated response from the Tribunal which showed that the claim had been acknowledged as received the day before within the time limit. The evidence was allowed. The time point was not raised in terms by the Respondent prior to the PHR and the Claimant could reasonably have expected the Employment Tribunal to correctly record the date on which his form ET1 was received. However the Tribunal was entitled to strike out the claim for race discrimination on the grounds that it had no reasonable prospect of success (ET rule 18(7)(b)) as the evidence accepted by the Tribunal was that at the time that the Claimant's job application was rejected the decision-maker was unaware of his race and the reason was a criteria applied to all applicants which was clearly justified. For the full judgment, click here.

 

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