Issue 12 - 20th June

Tuesday 20 June 2006

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CASES

Breach of Contract

Fraser v HMLAD Ltd [EWCA] Civ 738
The employee brought a claim for unfair dismissal and wrongful dismissal. He reserved his right to bring a claim in the High Court in so far as his claim for breach of contract exceeded the limit of £25,000 that the Employment Tribunal could award. He was successful and damages for breach of contract were found to be £80,090.62, but subject to the statutory cap. He pursued the remainder in the High Court. The employer sought to strike out the High Court claim. The Court of Appeal held that where a claim for wrongful dismissal has been decided in the Employment Tribunal, unlike a case where it had been withdrawn to pursue it solely in the High Court, the claim is extinguished as it is single and indivisible cause of action. Read more

Whistle-Blowing

Boulding v Land Securities Trillium (Media Services) Ltd UKEAT/0023/06
The Employment Tribunal erred in acceding to a half-time submission of no case made in a whistle-blowing claim. Whistle-blowing is a form of discrimination claim and it should normally be heard in full. Read more

Sex Discrimination

Moyhing v Barts and London NHS Trust UKEAT/0085/06
A male student nurse who has to be chaperoned when carrying out an intimate procedure with a female patient is subject to less favourable treatment than a female student nurse who does not have to be chaperoned when carrying out such a procedure on a male patient. As this is direct discrimination it cannot be justified (no genuine occupational qualification applied). However the Employment Tribunal found there was no detriment. The EAT allowed the appeal. The Tribunal?s view that if the reason for the discriminatory policy is cogent and rational then it cannot be justified to object to it was wrong. The appellant had felt upset, angry and demotivated and his evidence was not challenged. However the award would be at the lower end of the scale at £750. Read more

Compensation

Greenhoff v Barnsley MBC UKEAT/0093/06
When calculating pension loss Employment Tribunals should adopt the following sequential approach: (a) identify all possible benefits that the employee could obtain under the pension scheme; (b) set out the terms of the pension relevant to each possible benefit; (c) consider in respect of each such possible benefit first the advantages and disadvantages of applying "the simplified approach" or "the substantial loss approach" (from the booklet "Compensation for Loss of Pension Rights/ Employment Tribunal") and also any other approach that might be considered appropriate by the Tribunal or by the parties; (d) explain why they have adopted a particular approach and rejected any other possible approach; and (e) set out the conclusions and explain the compensation arrived at in respect of each head of claim so that the parties and the Appeal Tribunal can then ascertain if they have made an error. Read more

Lewald-Jezierska v Solicitors in law LtdUKEAT/0165/06
The enhanced award for failure to supply a written statement of terms and conditions introduced by s38 Employment Act 2002 applies even if the claim was made before the provision came into force.

 

Procedure

BUPA Care Homes Ltd v Muscolino UKEAT/0092/06
Care workers who are dismissed for misconduct may, depending on the circumstances, be placed on the Protection of Vulnerable Adults register by the Secretary of State for the same reasons. If this is the case they have the opportunity to appeal to the Care Standards Tribunal (?CST?). The CST will make a decision as to whether the behaviour complained of actually took place. While findings of the Employment Tribunal may be admissible in evidence before the CST, it would not be binding upon it and vice versa. It is therefore not necessary to stay Employment Tribunal proceedings pending the outcome of a CST appeal. Read more

Caldwell Hardware (UK) Ltd v Hooper UKEAT/0151/06
Once a claim is withdrawn and dismissed under Rule 25(4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, it cannot be re-instated, even on review. Read more

Consultation

Increased statutory holidays
The government has announced that it will begin consultation on its plans to increase statutory paid leave to include bank holidays in addition to the statutory four weeks annual leave. Read more

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