Issue 24 - 8th January 2007

Monday 8 January 2007

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Review

Griffin v City & Islington College UKEAT/0459/06/JOJ

The Respondent conceded liability for holiday pay under the Working Time Regulations as a series of unlawful deductions going back three years on the basis of the decision of the EAT in List Design Group v Douglas [2002] ICR 636. It requested a review when the Court of Appeal in Commissioner for Inland Revenue v Ainsworth & Anor [2005] IRLR 465 held that a claim for unpaid holiday pay under the Regulations had to be made within three months of the each deduction. The Employment Tribunal agreed and reduced the compensation. The EAT dismissed the appeal holding that the Employment Tribunal has a wide discretion to reopen a decision in the interests of justice and can do where as in the present case there is a change or new understanding as to what the law provides and no further facts have to be determined. More info

Incorporation of terms

Home Office v Evans & Laidlaw UKEAT/0285/06/DM

A Home Office Notice on redundancy had been incorporated into the Claimants' contracts and the decision not to act on it but to invoke a mobility clause was a fundamental breach. More info

Disability discrimination

Attridge Law v Coleman UKEAT/0417/06/DM

The EAT dismissed an appeal against the decision of the Employment Tribunal to refer to the Court of Justice of the European Union for a preliminary ruling the question of whether discrimination by way of association with a disabled person, or associative discrimination, is prohibited by the Equal Treatment Framework Directive. More info

Sex discrimination

Kettle Produce Ltd v Ward UKEATS/0016/06/MT

Where the act of discrimination complained of was that a male manager entered the women's toilets and shouted at a female cleaner who was on her break, it was necessary (as in Home Office v Saunders UKEAT/0260/05) to transpose the gender of both. The correct question was whether a female manager, with the same robust management style as this male manager, would treat a male cleaner having the same sensitivity as the Claimant, believed to be skiving, in the same way as he had treated the Claimant. More info

Equal pay

Tyne & Wear Passenger Transport Executive v Best UKEAT/0627/05/RN

The Employment Tribunal had erred when comparing the pay of two groups of train drivers in finding that there was a prima facie case that the pay disparity was tainted by sex as the overwhelming majority of those in the disadvantaged group were male. In an equal pay claim by women based upon indirect discrimination, in the absence of some provision criterion or practice that might lead to a disparate impact on women, it was necessary for there to be at least a bare majority of women in the disadvantaged group. Even if a bare majority was not required the proportion of women in the disadvantaged group had to be substantial and approaching a majority. Further a pool of the disadvantaged should not have included women who were not found to be doing equal work with the comparators in the advantaged pool. More info

Unfair dismissal

Mehra v The Governing Body of Marlborough Road Primary School UKEAT/0374/06/DA

Even though a letter sent after a disciplinary hearing setting out the allegations found to be proven and stating that the Claimant was due to be summarily dismissed did not give a date on which the contract was terminated it was clear there had been a dismissal and the claim for unfair dismissal was therefore not brought prematurely. More info

Baldwin v Brighton & Hove City Council UKEAT/0240/06/LA

The EAT finds that, with respect to the implied term of mutual trust and confidence, although Lord Steyn in Mahmud v Bank of Credit and Commerce International S.A. [1997] ICR 606 formulated the term as being that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, in fact on reviewing the authorities it is clear it should have been calculated or likely to destroy the relationship. More info

Compensatory award

Burlo v Langley [2006] EWCA Civ 1778

The Court of Appeal upholds the "narrow principle" in Norton Tool that in claim for unfair dismissal if a payment in lieu of notice was made the employee did not have to give credit for earnings received during the notice period. It did not extend to paying full pay for a notice period where an employee was off sick as she would only have received SSP in any event. More info

Employment status

James v Greenwich Council UKEAT/0006/06/ZT

The claimant worked for the council over a number of years through an agency. She claimed unfair dismissal on the basis that she had an implied contract of employment with the council. The EAT upheld the decision of the Employment Tribunal that she was not an employee as despite the length of time she had been assigned to work at the council. Considering Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437 and Cable and Wireless plc v Muscat [2006] IRLR 354 the EAT observed that the issue to be considered is whether the way in which the contract is in fact performed is consistent with the agency arrangements or whether it is only consistent with an implied contract between the worker and the end user. The mere passage of time does not justify such an implication. More info

Khan v Premier Private Hire Taxi UKEAT/0322/06/LA

The Chairman was wrong to reject a claim form on the ground that it appeared that the Claimant was a private hire taxi driver in the same position as the Claimant in Mingeley v Amber Cars [2004] IRLR 373. The application of Mingeley could have only been properly carried out once the facts of the relationship had been found or had been made clear in the claim form. More info

 

Compromise agreements

Palihakkara v British Telecommunications PLC UKEAT/0185/06/DM

A compromise agreement which referred to claims past or future arising out of the termination of employment, did not therefore cover claims which arose during the relationship or otherwise than on termination. Further, as the agreement did not specify, as required by the Sex Discrimination Act 1975 and the Relations Act 1976, that that all the conditions had been complied with (even though they had been), it was not a valid compromise agreement for the purpose of those statutes. More info

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