Issue 25 - 22nd January 2007

Monday 22 January 2007

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Statutory grievance procedure

Bradford MDC v Pratt UKEAT/0391/06/Z
The modified procedure requires the step one letter to set out both the grievance and "the basis" for it. The EAT held that the purpose of step one of the modified grievance procedure is for an employee to set out in his statement not only the grievance but the essential reasons why he holds his grievance, and in sufficient detail to enable the employer to respond. The amount of detail the employee will be able to give is likely to depend on the nature of the grievance. In the present case a grievance letter which complained that the employee had been paid less then male employees doing work of similar or equal value and that she had been denied access to additional payments enjoyed by male employees had not complied with step 1 of the modified grievance procedure. It failed to indicate the type of male colleague it applied to, nor the type of additional payment, nor the type of work in comparison with which equal value was claimed. Although further correspondence set out some of the details the claim form subsequently issued related to a different grievance, albeit about equal pay. More info

Strike out

HM Prison Service v Potter UKEAT/0457/06/DM
A claim by a member of the BNP that he had been discriminated against on the grounds of race by the Prison Service's policy of not employing anyone who was a member of a racist organisation should not be struck out as having no reasonable prospect of success under Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The Claimant's claim was that the policy was only applied to white organisations. If this was the case it could be direct discrimination, although it had been said by the ET to be indirect discrimination (a claim which in fact had no reasonable prospect of success), and although the prospects were weak evidence on direct discrimination should be heard. More info

Corrections to decision and time limits for appeals

Aziz-Mir v Sainsbury's Supermarkets plc UKEATPA/0537/06/JOJ
The EAT gives guidance to ETs that in the event of there being a need for a correction in a decision, that, unless such correction is so substantial as to require a fresh decision, in which case it probably constitutes not a correction but a review of its own motion under Rule 34(5) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, they should not send out a certificate of correction which purports to delete the entirety of the reasons and substitute corrected reasons. They should simply send out the corrected page or pages under cover of a certificate of correction. It may well be appropriate additionally, for the avoidance of any doubt, to accompany this with a statement that the date of promulgation remains unaltered; if so advised, they could further add words to the effect that the time for appeal, if any, continues to run from the original date.
In the present case the ET, after correcting an error, had sent out a complete substitution of a fresh judgment, and therefore time ran from the promulgation of the new reasons. More info

Notice pay

Zepbrook Ltd v Magnus UKEAT/0382/06/MAA
Where a contract gives the employer a discretion to make a payment in lieu of notice, then in a claim for wrongful dismissal for damages, credit must be given for sums earned in what would have been the notice period (following Cerberus Software Ltd v Rowley [2001] ICR 376) More info

Employment status

Cairns v Visteon UK Ltd UKEAT/0494/06/JOJ
The Claimant was employed under a contract of service with an agency but worked for an end-user. She brought a claim for unfair dismissal against the end-user on the basis of an implied contract (Dacas v Brook Street Bureau (UK) Ltd [2004] IRLR 358). The EAT considered the suggestion in Dacas that a contract may still be implied between a worker and an end-user even where there is also a contract of employment between the worker and the agency. It held there was no policy reason for extending protection from unfair dismissal to a second employer. Neither was there necessity for implying a contract of service with the end-user in a triangular relationship where the Claimant had entered into a contract of service with the agency. Further the statutory language envisages only one employer. More info

Constructive dismissal

Abbey National plc v Fairbrother UKEAT/0084/06/RN
The EAT holds that in deciding whether there is a breach of the implied term of trust and confidence in relation to the operation of a grievance procedure, the ET must consider whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee. This would involve looking at the whole of the grievance procedure, including any appeal. Where, as is this case, the complaint was the failure to uphold the grievance the ET was required to ask whether the Respondent had reasonable and proper cause for the final decision that they reached in respect of the grievance. More info

Sex discrimination

B v A UKEAT/0450/06/RN
The ET erred in finding that the dismissal by a Respondent of his secretary with whom he was having a relationship, when he saw her with another man, was sex discrimination. It had applied a "but for" test rather than asking whether the dismissal was "by reason of" her sex. Given that that ET had found that reason for the dismissal was jealousy or the discovery of the other relationship it was not therefore on the grounds of the Claimant's sex. The ET should have constructed a comparator and, following Chamberlin & Anr v Emokpae [2005] ICR 931 this would have been a homosexual male employer and a homosexual male employee. On the ET's findings, such an employee would have received the same treatment. More info

Aggravated damages

Watt (Shetland) Ltd v Reid EAT/424/01
The Scottish EAT would not interfere with an award of £7,500 for injury to feelings after the ET had found the employer discriminated on the grounds of sex by failing to take a male employees complaints of bullying seriously. However Scots law did not recognize aggravated damages as a separate award of damages and the appeal was allowed on that issue. More info

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