Issue 11 - 6th June 06

Tuesday 6 June 2006

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Sutton v The Ranch Ltd UKEAT/0072/06
The employers did not file a Response and so under Rule 9 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004they were not entitled to take any part in the proceedings except as set out in that rule. As a result under to Rules 8(1) and (2A) the Tribunal issued a default judgment in favour of the employee. The EAT held that Rule 38(4) in relation to costs applies equally to those who have put in a response and had it rejected and those who have not put in a response at all. Cost can only be awarded in relation to the part they have played in proceedings which is restricted by the provisions of Rule 9. Costs cannot therefore be recovered against a Respondent in relation to a hearing in which he was not allowed to take part. Read more

Strike out

Blockbuster Ltd v James [2006] Civ 684
The employee's claims were struck out on the morning of the hearing under Rule 18(7) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004on the basis that he had not complied procedural orders made by the Tribunal and in doing so had conducted the proceedings unreasonably. The EAT had allowed the employee's appeal and the Court of Appeal upheld that decision. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing. Read more

Race discrimination

Redfearn v Serco Ltd [2006] EWCA Civ 659
The employer provided buses to Bradford City Council to transport adults and children with physical or mental disabilities in the local area. The majority of the passengers were Asian in origin. The employee driver became a councillor for the BNP in the local elections. Trade unions and staff had object to his continued employment and he was summarily dismissed. He claimed his employer had treated him less favorably by dismissing him on the ground of the Asian race and ethnic origin of those the employer transported. It was argued that as the decision to dismiss was based on considerations relating to the race of third parties, their perceived hostility to his views and his perceived attitude to the race of third parties, that was direct discrimination "on racial grounds." The Court of Appeal disagreed. It held that he was no more dismissed "on racial grounds" than an employee who is dismissed for racially abusing his employer, a fellow employee or a valued customer. Any other result would be incompatible with the purpose of the 1976 Act to promote equal treatment of persons irrespective of race by making it unlawful to discriminate against a person on the grounds of race. Read more

Disability Discrimination

Taylor v OCS Group Ltd [2006] EWCA Civ 702
An employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason which is present in his mind and which is related to the employee's disability. There may be more than one reason for the dismissal but as long as the disability-related reason had a significant influence on the employer's decision it will be enough to found the conclusion that the dismissal was for a reason related to the employee's disability. Such a reason may not be conscious as long as it affected the employer?s thinking. Although in this case the employee's deafness may have affected his ability to explain his conduct and therefore contributed to his dismissal, the issue is whether the employer had a disability-related reason in his mind when he dismissed the employee. In this case it did not. Read more

Unfair Dismissal

Willow Oak Developments Ltd v Silverwood & Ors [2006] EWCA Civ 660
The employees were dismissed for refusing to accept variations of their contracts of employment that imposed new and more demanding post-employment covenants. The Court of Appeal agreed with the EAT that, contrary to the Tribunal's view, an employee's refusal to accept covenants proposed by the employer for the protection of his legitimate interests could be a reason of a kind justifying a dismissal under s98(1) Employment Rights Act 1996. However the Tribunal's finding that the employer had acted unreasonably in treating the failure to accept the covenants as a sufficient reason for the dismissal was unfair under section 98(4) would not be overturned. Read more

Taylor v OCS Group Ltd [2006] EWCA Civ 702
There is no rule of law that only an appeal by way of rehearing can cure the defects of an earlier disciplinary hearing. Such a rule would be a fetter on the discretion of the Tribunal when considering section 98(4) Employment Rights Act 1996. Whitbread v Mills [1988] ICR 776 should no longer be cited and Tribunals should instead consider the fairness of the whole of the disciplinary process. Read more

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