Issue 22 - 4th December 2006

Monday 4 December 2006

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Statutory disciplinary and grievance procedures

Department for Constitutional Affairs v Jones UKEAT/0333/06/DM
For the purposes of regulation 6(5) Employment Act 2002 (Dispute Resolution) Regulations 2004 (“the Regulations") a grievance that the employer has dismissed or is contemplating dismissal includes a complaint about the manner in which the employer is contemplating dismissal and the manner in which he has dealt with an appeal against dismissal. Therefore a complaint of discrimination in relation to the handling of the investigation and disciplinary procedures which led to dismissal and its outcome, including the appeal, would usually be a complaint about dismissal and the grievance procedures do not apply.  More info

Warner Ltd v Aspland UKEAT/0531/05/MAA
A letter before action between the parties’ solicitors may constitute a grievance for the purpose of the Regulations as long as it meets the requirements of regulation 2(1). A series of letters may be read together when deciding whether the complaint relates to the eventual claims. In the circumstances the grievance was not part of  “without prejudice" correspondence.   More info


Adding respondent after judgment

Aske Security Ltd v Foote & KAM Security Ltd UKEAT/0433/06/RN
The claimant obtained a judgment in default. She subsequently asked for a review to add the name of a new respondent as it would not be possible to recover against the original employer. Although the new respondent was a different legal entity the Employment Tribunal found it were in effect the same company and pierced the corporate veil. The EAT held that instead of just entering judgment against the new respondent the Employment Tribunal should have given it an opportunity to submit a response form and give evidence in defence.  More info

Hassan v Commissioner of Police of the Metropolis UKEAT/0437/06/DM
The dismissal of probationary police officer under regulation 13 of the Police Regulations 2003 by an Assistant Commissioner was a complaint which could be brought under the provisions against race and/or religious discrimination. The dismissal process was not sufficiently judicial to attract the common law protection of absolute immunity. The procedure adopted was not sufficiently similar to that adopted in a court of law.  More info

Lake v British Transport Police UKEAT/0154/06/LA
The conduct, procedure and the decisions of a Police Disciplinary Board are all immune from suit because it is a judicial body. The protection afforded to police officers who may be ‘whistleblowers’ introduced by s43KA Employment Rights Act 1996 does not affect this immunity and does not enable police officers to challenge the conduct, procedure or decisions of the Board. However the bringing of the disciplinary proceedings as well as the action of the Chief Constable on appeal or review could be subject to complaint.  
More info


Territorial jurisdiction

Transocean International Resources Ltd v Russell EATS/0074/05/MT
Workers on installations situated on or over the UK Continental Shelf were covered by the Working Time Regulations 1998 in relation to their rights to paid annual leave prior to the 2006 amendments.    More info


Unauthorised deductions

Dundee City Council v Robertson EAT/595/01
A car allowance which was provided whether or not the claimant ever used his car for work purposes should still be treated as payment of expenses under s27(2)(b) Employment Rights Act 1996 and therefore its withdrawal was not an unauthorised deduction from wages.  More info


Contractual redundancy entitlement

Peries v Wirefast Ltd UKEAT/0245/06/DA
Although the handbook in which the entitlements in relation to redundancy was contained stated that it was not part of the contract, this did not preclude a policy emerging based on custom and practice that could harden into a contractual entitlement.   More info


Unfair dismissal

Ali v Sovereign Buses (London) Ltd UKEAT/0274/06/DM
The right to silence under article 6(2) ECHR in criminal proceedings cannot be read into the principle of fairness under section 98(4) Employment Rights Act 1996 as applying to internal disciplinary procedure. Provided the principles set out in the relevant authorities such as X v Y [2004] ICR 1634 are applied, there will be satisfactory recognition of the standards of fairness invoked by the Convention.   More info

Royal Bank of Scotland plc v McAdie UKEAT/0268/06/ZT
The fact that an employer is responsible for an employee’s incapacity is relevant to whether it is reasonable to dismiss for that incapacity and in such a case it may be necessary in such a case to “go the extra mile" in finding alternative employment or to put up with a longer period of sickness absence than would otherwise be reasonable. In the present case, however, even though an employee’s stress-related illness was attributable to the employer, given that at the time of the dismissal there was no prospect of her ever returning to work the dismissal could not be unfair.  More info

Scope v Thornett [2006] EWCA Civ 1600
The consideration of continuing loss in unfair dismissal claims inevitably involves the consideration of uncertainties and therefore involves a speculative element. Evidence to the contrary may be so sparse so as to lead to conclusion that loss would have continued indefinitely, however where there is evidence it may not have done so that must be taken into account and reasons for the conclusions made and factors relied on sufficiently stated.  More info


Disability Discrimination

Birmingham City Council v Laws UKEAT/0360/06/MAA
The Employment Tribunal erred in finding disability discrimination in relation to a complaint that had never formed part of the Claimant’s claim despite a number of case management discussions and an agreed list of issues.  More info

London Borough of Barnet v Ferguson UKEAT/0220/06/DA
When considering whether there has been a failure to make reasonable adjustments the Employment Tribunal must identify the relevant arrangements made by the employer, the relevant physical features of the premises, the identity of non-disabled comparators (where appropriate) and the nature and extent of the substantial disadvantage suffered by the Claimant. The Employment Tribunal had erred in failing to do so. A failure to consider whether any reasonable adjustments can be made is not a breach of the duty itself, however it may put an employer at risk of a breach (following Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664).  More info


Protected disclosure

Bolton School v Evans [2006] EWHC Civ 1653
The Court of Appeal held that a protected disclosure does not extend to the whole course of conduct surrounding a disclosure but only the disclosure itself. Thus where disciplinary action was taken for the misconduct committed in hacking into a school’s IT system to demonstrate problems with security, this was not done on the grounds that a protected disclosure had been made.



Increase in Employment Tribunal awards

The new increased limits on Employment Tribunal awards come into effect on 1 February 2007.  The full schedule can be found in the link to the statutory instrument below.  More info 


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