Issue 23 - 18th December 2006

Monday 18 December 2006

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Disability discrimination

Lewisham Social Services v Jackson UKEAT/0331/06/DA

The Employment Tribunal erred in finding that a failure to consult the Claimant about his disability was a failure to make reasonable adjustments. This was not part of the claim before it and was not in any event a breach of the duty (applying Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664). More info

Unfair dismissal

Levenes Solicitors v Dalley UKEAT/0330/06/DA

The Employment Tribunal erred in finding that although the Claimant's dismissal was in the band of reasonable responses, it was unfair because she had not been treated consistently with another employee in similar circumstances. It concentrating on the disparity it had failed to properly apply s98(4) Employment Rights Act 1996. More info

Dr Gibson and partners t/a Blandford House Surgery v Hughes UKEAT/0371/06/RN

The Employment Tribunal erred in applying the last straw doctrine of constructive unfair dismissal when, on affirmation of the contract by the Claimant following earlier breach, there was only one event to consider. This was the construction of a letter sent to the Claimant by her employer, and as a matter of law the contents did not amount to a breach of contract. More info

Strike out

Bristol City Council v Palma UKEAT/0502/06/LA

The Employment Tribunal had erred in finding that the Claimant could bring another claim for breach of contract after previous proceedings were dismissed. There was no material difference between the present and former contracts such as to found a new cause of action and the proceedings were therefore an abuse of process. More info


Hamilton v GMB (Northern Region) UKEAT/0184/06

The Claimant brought proceedings claiming he was disciplined for allegedly directing members to a private solicitor to pursue equal pay claims as the union's policy was not to seek full compensation. He sought to have a member of the Tribunal recuse herself because she was a senior officer in Unison which had adopted a similar stance in relation to the equal pay strategy. It was alleged that the member knew various persons who had some role in the relevant events, and that she had a vested interest in the policy being upheld. The Employment Tribunal rejected the application. The EAT summarised the legal principles on bias and held that in the present case while there was no interest bias there was in the circumstances the appearance of bias sufficient to have required recusal. More info

Statutory disciplinary and dismissal procedure

YMCA Training v Stewart UKEAT/0332/06/ZT

The Claimant was sent a letter inviting her to in investigatory meeting which set out in general the allegations against her and include further detail in a witness statement. At the meeting the Claimant discussed and answered the allegations. After the meeting she was telephoned to invite her to a disciplinary meeting but no further letter was sent nor any details of further investigations made. At the meeting she was merely told of the results of the investigation and the decision to dismiss. The Employment Tribunal found automatic unfair dismissal for the failure to follow Step 1 and Step 2.

The EAT held that the Employment Tribunal had erred in finding automatic unfair dismissal. It had wrongly focused on the labels given to the letter and meetings rather than whether the substantive requirements of the statute had been met. The letter inviting the Claimant to the investigatory meeting was in substance a Step 1 letter. It contained the necessary statement of the alleged conduct and gave an invitation to a meeting to discuss the matter. The witness statement provided with the letter furnished "the basis" for the grounds set out in the letter as required by the statue. The "investigatory meeting" met the requirements of Step 2.

The statutory requirements are minimal and complying with them means the employer is not liable for automatic unfair dismissal but will not necessarily escapes liability for ordinary unfair dismissal.

However in this case there was no ordinary unfair dismissal as the Employment Tribunal had found that if a fair procedure had been followed the Claimant would have been dismissed in any event (following Kelly-Madden v. Manor Surgery UKEAT/0105/06). More info

A to B Travel Ltd v Kennedy UKEAT/0341/06/MAA

The Employment Tribunal erred in finding that although the employer had followed the statutory dismissal procedure, in suspending the Claimant without pay prior to Step 1 this made the dismissal automatically unfair under s98A ERA. This section only applies if the procedure has not been completed in relation to the dismissal itself. More info

Working time

HM Revenue & Customs v Stringer

The House of Lords has referred to the questions of the relationship between the right to annual leave under the Working Time Directive and employees on sick leave to the European Court of Justice

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New Service

"Free" Advice from Specialist Employment Counsel: for the period 1 January 2007 to end March 2007, solicitors or advice agencies who have Contracts with the LSC (or are LSC Quality Mark holders) will be able to obtain written advice from counsel on Employment cases without having to first call the Garden Court Chambers CallCounsel advice line. This applies to NON URGENT cases only for which the client does not already have a public funding certificate. The maximum turnaround time will be 21 days.

Requests should be sent by letter to the Employment Clerks at Garden Court Chambers. The letter should be headed "Specialist Support Service", give a Legal Services Commission Contract number, and briefly describe both the problem and the question(s) to be answered (enclosing any relevant documents).

This will be the last Employment Law Bulletin until the New Year. We extend Seasons Greetings to all our readers


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