Issue 21 - 20th November

Monday 20 November 2006

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Protective awards

TGWU v Brauer Coley Ltd (in administration) UKEAT/0313/06
Where a protective award is made against a company (now in administration) for breach of the obligation to consult it in relation to employees represented by a trade union, other employees in respect of whom the trade union is not recognised, cannot obtain an award on the basis of that claim.  More info

Statutory dismissal procedures

Scott-Davies v Redgate Medical Services UKEAT/0273/06/LA
There is no free-standing right to complain of a breach of the statutory dismissal procedures in the absence of a valid claim of unfair dismissal. The right to a statement of particulars of contractual terms under s1 Employment Rights Act 1996 (“ERA￯ïx¿ïx¢ï¿¯xïx€ï¿¯xïx?) is not one to which the procedures apply and no grievance has to be filed before presenting a claim under s11 ERA to the Employment Tribunal.  More info

Statutory grievance procedures

HM Prison Service v Barua UKEAT/0387/06/MAA
For the purpose of the extension of the time under Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, an employee’s grievance is to be treated as lodged ‘within the normal time limit’ even if it is lodged before the effective date of termination or other date from which time starts to run.   More info

London Borough of Lewisham v Colbourne UKEAT/0339/06/RN
The EAT adopts the reasoning in Barua, above. In this case a grievance presented before the effective date of termination in a case of constructive dismissal was sufficient to comply with the requirements of a step one grievance letter.  More info

Continuing act

Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548
The Court of Appeal affirms that at a preliminary hearing to decide whether complaints of discrimination form an act extending over a period for the purposes of s68(7)(b) Race Relations Act 1976 the test is whether there is a prima facie case and what is required to be shown is that there was “an ongoing situation or state of affairs￯ïx¿ïx¢ï¿¯xïx€ï¿¯xïx? of less favourable treatment (following Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686). Here the Employment Tribunal had applied the correct test.

Reasonable adjustments

NTL Group Ltd v Difolco [2006] EWCA Civ 1508
Where selection for redundancy was not an act of disability discrimination, it was not a reasonable adjustment for a disabled employee to be offered alternative employment on a part-time basis when that job was to be advertised full time. The Court of Appeal found that in the circumstances the basis on which a job was advertised was not an arrangement for the purposes of the then s6(1) Disability Discrimination Act 1995.   More info

Unfair contract terms

Commerzbank AG v Keen [2006] EWCA Civ 1536
The Court of Appeal holds that s3 Unfair Contract Terms Act 1997 did not apply to remuneration under a contract of employment. 
More info


Pensions and age discrimination

The provisions on age discrimination in pensions come into effect from 1 December 2006 but before their implementation the government has already published amending legislation in the Employment Equality (Age) (Amendment No.2) Regulations 2006. The amendments are concerned with exemptions relating to trustees and managers of pension schemes. The DTI states the amendments are introduced to provide clarification of the existing schedule of exemptions and further specific exemptions to address concerns that were highlighted during DWP’s short informal consultation that closed on 20 October 2006.  More info

Flexible working

From 6 April 2007 carers will have the right to request flexible working. The government has announced the definition of a carer will be an employee who is or expects to be caring for an adult who:

  • is married to, or the partner or civil partner of the employee; or
  • is a near relative of the employee; or
  • falls into neither category but lives at the same address as the employee.


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