Issue 15 - 1st August

Tuesday 1 August 2006

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Withdrawal of claim

Khan v Heywood & Middleton Primary Care Trust [2006] EWCA 1087 The Court of Appeal, while criticising the drafting of the rule, held that an Employment Tribunal does not have jurisdiction to set aside a notice of withdrawal of a claim made under rule 25(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.


Barracks v Coles & Commissioner of Police for the Metropolis [2006] EWCA Civ 1041 The Claimant was unsuccessful in her application for an intelligence officer's post as she failed the vetting check. The Respondent refused to give her a reason for the failure and she made a claim for race discrimination. At a case management hearing the Respondent stated it was prohibited by law from providing the explanation to the Claimant or to the Employment Tribunal. The Employment Tribunal ordered that if the respondent did not provide further particulars of the reason for failing to appoint the Claimant, and the legal basis of its claim it was prohibited from law from disclosing the reason, its response would be struck out. The Court of Appeal held that the Employment Tribunal was wrong in law to make such an order with which the Respondent could not, on its case, comply without breaking the law, which it understood prohibited either disclosure of the information or of the legal basis for the prohibition on disclosure. The matter should go ahead in the Employment Tribunal with the Claimant being able to make submissions on inferences to be drawn from the evidence, any refusal to answer questions or produce documents, and the burden of proof.


Working time and a week's pay

May Gurney Ltd v Adshead & Ors UKEAT/0150/06 . Under Regulation 16 of the Working Time Regulations 1998 an employee is entitled to a week's pay in respect of each week of leave. The concept of a week's pay is the same as that in sections 221-224 of the Employment Rights Act 1996. The employees were entitled to a fixed and variable bonus which were not taken into account by the employer when calculating holiday pay. The EAT agreed with the Employment Tribunal that the variable bonus should be taken into account as it was essentially a productivity bonus of a kind which meant that the amount of week's pay did vary with the amount of work done. The fixed bonus was also part of the weekly wage in the sense that it was part of the remuneration for performing the basic weekly hours. As a result, the pay varied with the work and holiday pay should be determined by averaging the pay over the 12 preceding the holiday.

Part-time workers and pensions

Dennison v University College of St Mark and St John UKEAT/0196/06 The part-time employee was denied access to the pension scheme which was voluntary for full-time staff. She took out a personal pension. Three years later the rules on access were changed but she did not apply to join for eight years, despite the Employment Tribunal finding she had been told of her right to do so. The Employment Tribunal found there was no breach of the equality clause as it was not her having taken out the private pension that prevented her from joining the scheme but her previous failure to understand her rights.

The EAT referred to the guidance in Part-Time Pensions Bulletin No 9, paragraph 7.2, in relation to schemes from which part-time workers were excluded but where membership for full-timers was not obligatory. It held that there is a presumption that, if on becoming eligible a person did not join the scheme, they would not have joined it even had they been eligible to join at an earlier stage. However there may be circumstances where that presumption may be rebutted by demonstrating in one way or another that they would then have joined. The Employment Tribunal had erred in failing to focus on the fundamental question, which was whether the employee would have joined the scheme at the earlier stage had she thought that she was eligible to do so.

Burden of proof

Laing v Manchester City Council UKEAT/0128/06 It is not an error of law when considering the shifting of the burden of proof to fail to adopt the two-stage test as set out in Igen v Wong. The focus of the Employment Tribunal's analysis must at all times be the question whether or not it can properly and fairly infer race discrimination. If it is satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then is the end of the matter. It is not improper for an Employment Tribunal to say it is satisfied that that even if the burden of proof has shifted, the employer has given a fully adequate explanation as to why it behaved as it did and it has nothing to do with race. In this case the Respondent claimed that the manager displayed the same aggressive manner to all staff and this explanation could be considered at the stage of whether a prima facie case was raised.

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