Issue 26 - 5th February 2007

Monday 5 February 2007

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Burden of proof

Madarassay v Nomura International [2007] EWCA Civ 33

The Court of Appeal holds that is not enough for a Claimant to shift the burden of proof for her simply to establish a difference in status (ie gender) and a difference in the treatment. A difference in status and a difference in treatment indicate a possibility of discrimination but are not sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. "Could conclude" in section 63A(2) Sex Discrimination Act 1975 means that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the Claimant in support of the allegations of sex discrimination as well as evidence adduced by the Respondent contesting the complaint.

Where the comparator is hypothetical, it may not necessarily be an error of law for an ET to fail to go through the two-stage test to act upon on the assumption that the burden may have shifted and then consider the explanation put forward by the Respondent. However, it also not an error of law to use the two-stage test. Click Here to read the transcript

Unauthorised deductions

Coors Brews Ltd v SP Adcock & Ors [2007] EWCA Civ 19

Claims under s13 Employment Rights Act 1996 must be able to quantify the amount of the alleged deduction. Otherwise the claim is for an unliquidated sum in damages for breach of contract. Such claims cannot be brought in the ET if the Claimant is still employed. The present claim was by Claimants who were still employed for benefits from a profit share scheme the amount of which was not readily ascertainable. As a result there the ET had no jurisdiction. Click here to read the transcript

Statutory dispute resolution procedures

Brock v Minerva Dental Ltd UKEAT/0356/06/DM

The Respondent dismissed the Claimant summarily without following the statutory dismissal procedure. The Claimant appealed and the dismissal was withdrawn but he refused to return citing a breakdown in trust and confidence. The original claim was for direct unfair dismissal. The Claimant later sought to amend to include a claim for constructive dismissal outside of the primary time limit. The ET at a preliminary hearing found there was no dismissal and would not allow the amendment. The EAT agreed that there was no direct dismissal. By appealing, the Claimant had sought to have the termination rescinded and this was achieved. The dismissal therefore "vanished". However there was correspondence between the parties before the expiry of the primary time limit which constituted a Step 1 letter for the purposes of the grievance procedure thus extending the time limit and therefore the claim for constructive dismissal was in time. The exemptions to the procedures in Regulations 6(5) and 6(6) did not apply. However the principles in Selkent still had to be considered and in the circumstances the amendment should have been allowed. More info

Serco Group plc v Wild UKEAT/0519/06/DA

A Claimant's grievance letter under Step 1 of the standard grievance procedure referred to unfairness in her pay but did refer to male comparators or the Equal Pay Act. The EAT held that it was permissible for an ET, when considering whether a document met the requirements of Step 1 of the statutory grievance procedures, to consider the wider context in which it was written, including unchallenged evidence of conversations between Claimant and an employee of the Respondent before the letter was written in which the Claimant had stated that she was concerned that she was not paid on an equal basis to men in similar roles and that this was against the law. More info

RKS Services v Palen UKEAT/0300/06/RN

An uplift to unfair dismissal compensation of 30% for failure to follow statutory dismissal procedures was within the ET's discretion and could have been higher. The Claimant, who was summarily dismissed for taking time off when a dependant fell ill, had not had the benefit of any disciplinary procedure at all. This was a fundamental failure. More info

Correction of decisions

Magenta Security Service v Wilkinson UKEAT/0385/06/MAA

Under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 ("the ET Rules") case management decisions can be taken by a Chairman alone, however if they are made during a hearing with a full Tribunal, they will be taken by the Tribunal as a whole. Where a hearing before a full Tribunal is adjourned or postponed, a Chairman may then, in his or her discretion, go on to make case management decisions alone or with the other members. Whichever path is taken, the position must be made clear to the parties and they must be in a position to know whom they are addressing. The EAT suggested that in general it is desirable in those circumstances that the other members physically leave the room so that the position is clear beyond doubt as far as the parties are concerned. More info

Claim forms

Grant v In 2 Focus Development Services Ltd UKEAT/0310/06/LA

The Claimant's claim was rejected as it has not been presented on the prescribed form as required by rule 1(3) of the ET Rules. No further explanation was given. It appeared to the EAT the only reason for rejecting it was that during the process of faxing the claim as received was smaller than the prescribed form. It held this was not sufficient reason to reject the claim and no proper explanation had been given for its rejection under rule 3(1). Such an explanation must identify the reason why the form has been rejected in a manner which enables the Claimant to understand what has to be put right in any resubmitted claim. Although the rejection was by the Secretary and not the ET, the EAT had jurisdiction to hear an appeal. More info

Constructive dismissal

Bates v Liverpool City Council UKEAT/0309/06/CEA

In a constructive dismissal claim based on a disciplinary sanction short of dismissal, the issue is whether the sanction was disproportionate. Although the test in British Home Stores v Burchell [1978] IRLR 379 should not be imported wholesale into cases of constructive dismissal, where the issue was the severity of a disciplinary penalty, it was not an error of law to consider whether the sanction fell outside the band of reasonable responses. More info

Polkey deduction

Software 2000 Ltd v Andrews & Ors UKEAT/0533/06/DM

The EAT considered the recent case law on the application of Polkey and summarised the principles together with s98A(2) Employment Rights Act 1996. In the present case the ET had erred in that although it had properly applied s98A(2), it did not go on to specifically address the question whether there was any reliable evidence from which it could assess the chance that dismissals would have taken place in any event. More info

Tupe and contract terms

Computershare Investor Services plc v Jackson UKEAT/0503/06/CEA

The Claimant was employed by the transferor in 1999 and transferred to the transferee in 2004. At the time of the Claimant's transfer she had no terms relating to enhanced redundancy or severance payments. Before her transfer the transferee had introduced a severance package which distinguished between those employed before and after 2002. The EAT held that the ET was wrong to find that the Claimant should have had "pre-2002" rights. Although for some statutory purposes the Claimant was to be regarded as being employed by the Respondent from 1999, with respect to her contract, the purpose of the Directive, and therefore the regulations was only to preserve existing rights at the date of the transfer and not to provide enhanced rights. More info

Power v Regent Security Services Ltd UKEAT/0499/06/LA

An employee of the transferor had a contractual retirement age of 60. He was in a unique position as no-one else was transferred. After the transfer he agreed to vary the retirement age to 65. The transferee however dismissed him at age 60 and argued that under TUPE regulations the variation was void and his previous contractual retirement applied. The EAT held that a transferee employer, unlike an employee, cannot invoke either the case law of the ECJ or regulation 12 to escape contractual obligations he has voluntarily undertaken, even where they are the result of a variation in the contract which is by reason of the transfer. It held that the relevant ECJ case law merely established that if the employee wishes to rely upon a term originally found in the agreement with the transferor (but which will have transferred to the transferee) rather than relying upon a term in the varied or new agreement with the transferee, he will be entitled to do so. More info

Working time

First Hampshire & Dorset Ltd v Feist & Ors UKEAT/0510/06/DM

Bus drivers, who are excluded from right to daily rest under regulation 10(1) Working Time Regulations 1998 as amended, are entitled to adequate rest (regulation 24A) but not compensatory rest (regulations 21 and 24). More info


Cumbria City Council v Carlisle-Morgan UKEAT/0323/06/CEA

The Claimant suffered a number of detriments after making a protected disclosure to her managers. Some resulted from the behaviour of supervisors or other managers while some were harassment by the fellow employee about whose behaviour she had originally complained. The Respondent argued that an employer might be vicariously liable under s47B Employment Rights Act for acts of those in authority but not the actions of fellow employees unless done with the employer's express or implied authority. The EAT held that there is nothing in the Act which indicates that the acts of certain fellow employees can be regarded as binding the employer for the purpose of the section whereas those of others cannot. On the other hand the absence of words such as those to be found in s41 Sex Discrimination Act 1976, s33 Race Relations Act 1976 and s58 Disability Discrimination Act 1995 may mean that there are cases where under an argument is open to the employer under the "close connection" test which would not be open in a claim under the discrimination Acts. More info

Race discrimination

Treasury Solicitors Department v Chenge UKEAT/0452/06/DA

The Government Legal Service's work experience programme "Vacation Placement Scheme" is vocational training for the purposes of s13 Race Relations Act 1976. Under s78 training "includes any form of education or instruction" and the scheme clearly met the definition of education, comprising a 10 day course with a programme of activities. More info

Contract of employment

Ministry of Defence v Kettle UKEAT/0308/06/LA

Following Charmichael v National Power [2000] IRLR 43, a Tribunal faced with documents said to be contractual, must decide whether the parties intended the documents to be the exclusive record of the terms of their agreement. That is a question of fact. If that was the parties' intention, the Tribunal is generally restricted to consideration of the documents, the meaning of which is a question of law. If it was not the parties' intention, the Tribunal will look at other relevant materials to determine the terms of the contract. These may include oral exchanges and conduct. In the present case although the contractual documents stated the Claimant was a contractor who could use sub-contractors, the document was issued after the Claimant had been interviewed and accepted the advertised post of a salaried orthodontist and had explained that she would not be able to provide a substitute. The Tribunal was not therefore in error to look outside the documents and to find she was an employee. More info

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