Issue 14 - 18th July

Tuesday 18 July 2006

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CASES

Harassment

Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34
The House of Lords decides that an employer may be held vicariously liable in damages under section 3 Protection from Harassment Act 1997 for a course of conduct by one of its employees which amounts to harassment in breach of section 1 of that Act.
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Daniels v Commissioner of Police for the Metropolis[2006] EWHC 1622 (QB)
In order to come within the definition of harassment under section 1 Protection from Harassment Act 1997 the claimant must show harassment by at least one employee who is shown on at least two occasions to have pursued a course of conduct amounting to harassment, or by more than one employee each acting on different occasions in furtherance of some joint design.

Disability Discrimination

Whitbread Hotel Company Ltd v Bayley UKEAT/0131/06/MAA
The Chairman erred in rejecting the evidence of a clinical diagnosis of severe dyslexia for reasons which were not sustainable. Once this diagnosis is accepted, pursuant to Guidance C12 it is 'obvious' that the effect is substantial on day-to-day activities.
For more info Click Here

Burden of Proof

Network Rail Infrastructure Ltd v Griffiths-Henry UKEAT/0642/05/CK
The Tribunal erred when it found, after the burden of proof had shifted, that because a selection process was not objective, it must then be considered to be tainted by race or sex discrimination. The Tribunal had failed to distinguish between unreasonable conduct which rendered the dismissal unfair, and discriminatory treatment. The Tribunal must take account of all potentially non-discriminatory factors when reaching its decision.

In giving proper reasons it will generally be necessary for the Tribunal to show whether any discrimination which took place was conscious or unconscious. It is particularly important in cases of unconscious discrimination for the Tribunal to set out the primary factors which have led it to the conclusion it has reached. For more info Click Here

Procedure

Ridsill & Ors v D Smith and Nephew Medicines & Ors UKEAT/0704/05/DM
The Claimants' claims were struck out at a Pre-Hearing Review on the basis that they had not been actively pursued and that there had been a failure to comply with orders of the Tribunal. The EAT held that the Chairman had erred by restricting his consideration of whether a fair trial could still go ahead to whether one could take place the following week at the fixed date for trial, instead of whether in all the circumstances, a fair trial was still possible if the trial date was adjourned and appropriate directions given. The Chairman himself was under an obligation to consider an adjournment even though it was not raised by the parties themselves. For more info Click Here

Ellis v Yansen UKEAT/0132/06/ZT
A claimant in person claimed unfair dismissal, racial harassment and race discrimination. Before the first hearing she applied for an adjournment on the basis that she was unwell and unable to prepare for the case. On telephoning the Tribunal the next day she was told that the application had not been dealt with as the Tribunal had to seek the views of the Respondent. On the same day she faxed a letter to the Tribunal stating that she could not continue with the hearing scheduled as had no representation and was no very well and so withdrew her claims. The Respondents applied for the proceedings to be dismissed. The Claimant subsequently wrote to the Tribunal explaining that the lack of legal representation caused her distress and anxiety but she was not going to 'dismiss' her claim. On review the Tribunal allowed the decision to dismiss the claim to be revoked. The Respondents' appeal was allowed. Although the EAT found it difficult to understand why under Rule 25 of Schedule 1 of the 2004 Regulations there is no jurisdiction in the Tribunal to revive or re-instate a withdrawn claim, it was bound to find that was the case. Further the letter withdrawing the claims was sufficient to meet the requirements of Rule 25(2) in that the withdrawal notification made it clear against which Respondents the claim was withdrawn. For more info Click Here

Goverment

National Minimum Wage
HM Revenue & Customs is beginning a year-long enforcement campaign after finding that one in three of the nurseries they have visited have been paying less than the minimum wage. The campaign will involve a combination of education, targeted enforcement and working with employers.

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