Issue 20 - 6th November 2006

Monday 6 November 2006

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Cases

Whistleblowing – time limits

Arthur v London Eastern Railway Ltd (t/a Stanstead Express) [2006] EWCA Civ 1358
Under s48(3) of the Employment Rights Act 1996 (“ERAâ€?) employees can complain about acts of detriment that are outside the three-month period if they form part of “a series of similar acts or failuresâ€?. The Court of Appeal held that under this section it is necessary to look at all the circumstances surrounding the acts in order to determine the question of jurisdiction. Some evidence is needed to determine what link, if any, there is between the acts. The Employment Tribunal was therefore wrong to decide at a pre-hearing review without hearing evidence that most of the complaints were out of time. (read more)

Employment status

New Testament Church of God v Stewart UKEAT UKEAT/0293/06
The Employment Tribunal, having considered Percy v Church of Scotland Board of National Mission [2006] IRLR 195, was right to find that a pastor was an employee of his church for the purposes of claiming unfair dismissal. (read more)

Gladwell v Secretary of State for Trade and Industry UKEAT/0337/06/ZTThe Employment Tribunal had erred in giving too much consideration to a director’s 50% shareholding in a company when deciding he was not an employee for the purposes of s230 ERA. A majority shareholder will in practice act as the employer, making decisions on behalf of the company in which he has shares, but that does not prevent him being an employee. (read more)

 

Strike out

Letherbarrow v Kindergarten UK Ltd UKEAT/0258/06/RN
It was inappropriate for a chairman sitting alone to strike out the Claimant’s claim for unfair dismissal at a pre-hearing review as there were issues of fact to be determined. (read more)

Expert evidence

Makar v Triad Group plc UKEAT/0513/06/RN
The Employment Tribunal has a wide discretion with respect to case management decisions and made no error of law in limiting the extent of expert evidence. (read more)

Unfair dismissal

Hutchinson v Calvert UKEAT/0205/06/LA
When deciding whether the employer had made out a potentially fair reason for dismissal which is said to be for some other substantial reason, it is necessary for the Employment Tribunal to consider whether the employer genuinely believed in the reason given and whether the reason is one which is not whimsical or capricious. (read more)

 

Costs

Richmond v Devon Doctors on Call UKEAT/0314/06/DA
While the Employment Tribunal had not erred in deciding to make an order for costs, it had failed to give any explanation of how it arrived at the figure of £4,000 or whether the Claimant’s unemployment had been taken into account. (read more)

 

 

s98A Employment Rights Act

Patel v Clemence Hoar Cummings UKEAT/0214/06/DM
The Employment Tribunal erred in finding that although s98A(1) ERA did not apply because the decision to dismiss was taken before 1 October 2004, s98A(2) did apply and the decision to dismiss was fair under that subsection. As s98A(1) was not in effect then s98A(2) was not in effect either as they were inexorably linked. (read more)

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