Issue 28 - 19th March 2007

Monday 19 March 2007

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CASES

EUROPEAN COURT OF HUMAN RIGHTS

Trade Union Rights

ASLEF v United Kingdom, European Court of Human Rights (Application no. 11002/05)

The restriction imposed on trade unions by section 174 Trade Union and Labour Relations (Consolidation) Act 1992 preventing them from expelling a member on the basis of his or her membership of a political party represented an interference with rights under Article 11 which the European Court of Human Rights held in the present case was not justified. The person expelled was a member of the BNP whose political values and ideals clashed fundamentally with the union's. The court held that the member expelled had the right to express his political views however the trade union had a right to choose its members. Accordingly, in the absence of any identifiable hardship suffered by the member expelled or any abusive and unreasonable conduct by the applicant, the balance has not been properly struck and that the case fell outside any acceptable margin of appreciation. More info

COURT OF APPEAL

Disability discrimination

Hay v Surrey County Council [2007] EWCA Civ 93

The Court of Appeal upheld the decision of the EAT that the Tribunal had erred in finding that the Respondent had failed to make reasonable adjustments when the medical evidence showed her disability prevented her from carrying on her previous duties. The parties agreed that the correct statement of the law in relation to risk assessments was that in Tarbuck v Sainsbury's Supermarkets [2006] IRLR 664 and therefore the Court of Appeal did not address the issue. More info

Whistle-blowing

Babula v Waltham Forest College [2007] EWCA Civ 174

Under s43B Employment Rights Act 1996 a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show, among other things, that a criminal offence has been committed, is being committed or is likely to be committed or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. The Court of Appeal held that provided this subjective belief is objectively reasonable, the fact that the belief turns out to be wrong or the information which was believed to be true (and may indeed be true) does not in law amount to a criminal offence, does not render the belief unreasonable. More info

High Court

Sex discrimination

Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] EWHS 483 Admin

In introducing the Employment Equality (Sex Discrimination) Regulations 2005 to amend the Sex Discrimination Act 1975 ("SDA") the Government had failed to properly implement Directive 2002/73. Section 4A(1)(a) SDA should be recast so as to eliminate the issue of causation in claims of harassment. Section 4A(1) should be recast to allow for a claim against an employer for knowingly failing to take steps to prevent such harassment from taking place. Section 3A should be recast so as to eliminate the statutory requirement for a comparator who was not pregnant or who was not on maternity leave. Section 6A should be recast so as to provide that discrimination claims that had previously been available should not be excluded. More info

EMPLOYMENT APPEAL TRIBUNAL

Jurisdiction

Jananyagam v Commonwealth Secretariat UKEAT/0443/06/DM

The Commonwealth Secretariat, on the concession that it was a public authority, was allowed to claim immunity from suit by statute and this did not infringe the Claimant's Article 6 rights. More info

Statutory grievance procedures

ND Gibbs t/a Jarlands Financial Services UKEAT/0023/07/RN

Within the statutory scheme an ET1 cannot amount to a Step 1 Grievance letter for the purposes of a later claim. The statutory structure envisages that a grievance procedure is invoked before litigation is commenced. The employee cannot submit an ET1 until he or she has waited for 28 days. Furthermore the employee has not "sent" a statement of grievance to the employer by presenting an ET1 to the Tribunal. More info

Review of default judgment

Barrosso & ors v Fahy UKEAT/0558/06/DA

The Tribunal erred, when reviewing its decision to enter a default judgment when a response was presented one day late, in only considering the reason for the delay. It had failed to take account of all relevant factors including the merits of the case and the prejudice to the parties. More info

Unfair dismissal

Whitehead v The Governing Body of Corley School UKEAT/0438/06/DM

A finding that dismissal was to any extent caused or contributed to by conduct of the Claimant, if compensation is to be reduced under s123(6) Employment Rights Act 1996, requires the Tribunal to make findings of fact as to the conduct in question, which must be blameworthy conduct known to those responsible for his dismissal. More info

LEGISLATION

Draft Equality Act (Sexual Orientation) Regulations 2007

Draft regulations have been laid before Parliament prohibiting discrimination on the grounds of sexual orientation in the provision of goods, facilities, services, education, the management and disposal of premises and the exercise of public functions. More info

 

 

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